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HomeMy WebLinkAboutMINUTES - 12062016 - (2)       CALENDAR FOR THE BOARD OF SUPERVISORS CONTRA COSTA COUNTY AND FOR SPECIAL DISTRICTS, AGENCIES, AND AUTHORITIES GOVERNED BY THE BOARD BOARD CHAMBERS ROOM 107, ADMINISTRATION BUILDING, 651 PINE STREET MARTINEZ, CALIFORNIA 94553-1229 CANDACE ANDERSEN, CHAIR, 2ND DISTRICT MARY N. PIEPHO, VICE CHAIR, 3RD DISTRICT JOHN GIOIA, 1ST DISTRICT KAREN MITCHOFF, 4TH DISTRICT FEDERAL D. GLOVER, 5TH DISTRICT DAVID J. TWA, CLERK OF THE BOARD AND COUNTY ADMINISTRATOR, (925) 335-1900 PERSONS WHO WISH TO ADDRESS THE BOARD DURING PUBLIC COMMENT OR WITH RESPECT TO AN ITEM THAT IS ON THE AGENDA, WILL BE LIMITED TO TWO (2) MINUTES. The Board Chair may reduce the amount of time allotted per speaker at the beginning of each item or public comment period depending on the number of speakers and the business of the day. Your patience is appreciated. PURSUANT TO THE BOARD OF SUPERVISORS RULES OF PROCEDURES (RULE 14), IF ANY MEETING IS WILLFULLY INTERRUPTED BY A GROUP OR GROUPS OF PERSONS SO THAT THE ORDERLY CONDUCT OF THE MEETING BECOMES INFEASIBLE AND ORDER CANNOT BE RESTORED BY THE REMOVAL OF INDIVIDUALS WHO ARE WILLFULLY INTERRUPTING THE MEETING, THE CHAIR MAY ORDER THE MEETING ROOM CLEARED, AS AUTHORIZED BY LAW (GOV. CODE, § 54957.9), RECESS THE MEETING, OR ADJOURN THE MEETING. A lunch break or closed session may be called at the discretion of the Board Chair. Staff reports related to open session items on the agenda are also accessible on line at www.co.contra-costa.ca.us. AGENDA December 6, 2016         9:00 A.M. Convene and announce adjournment to closed session in Room 101. Closed Session A. CONFERENCE WITH LABOR NEGOTIATORS 1. Agency Negotiators: David Twa and Bruce Heid. Employee Organizations: Contra Costa County Employees’ Assn., Local No. 1; Am. Fed., State, County, & Mun. Empl., Locals 512 and 2700; Calif. Nurses Assn.; Service Empl. Int’l Union, Local 1021; District Attorney’s Investigators Assn.; Deputy Sheriffs Assn.; United Prof. Firefighters, Local 1230; Physicians’ & Dentists’ Org. of Contra Costa; Western Council of Engineers; United Chief Officers Assn.; Service Employees International Union Local 2015; Contra Costa County Defenders Assn.; Probation Peace Officers Assn. of Contra Costa County; Contra Costa County Deputy District Attorneys’ Assn.; and Prof. & Tech. Engineers, Local 21, AFL-CIO; Teamsters Local 856. 2. Agency Negotiators: David Twa. Unrepresented Employees: All unrepresented employees. B. CONFERENCE WITH LEGAL COUNSEL--EXISTING LITIGATION (Gov. Code, § 54956.9(d)(1)) 1. Charlene Harris v. Contra Costa County, United States District Court, Northern District of California, Case No. C16-4795 YGR 2. Charlene Harris v. Contra Costa County, Contra Costa County Superior Court Case No. C16-01583 3. Keller Canyon Landfill Company v. County of Contra Costa, et al., Contra Costa County Superior Court Case No. C16-02062 4. Robert L. Carby, et al. v. Contra Costa County, Contra Costa County Superior Court Case No. C13-02201 9:30 A.M. Call to order and opening ceremonies. Inspirational Thought- "A kind word can warm three months of winter." ~ Japanese Proverb   CONSIDER CONSENT ITEMS (Items listed as C.1 through C.117 on the following agenda) – Items are subject to removal from Consent Calendar by request of any Supervisor or on request for discussion by a member of the public. Items removed from the Consent Calendar will be considered with the Discussion Items.   PRESENTATIONS (5 Minutes Each)   PR.1 PRESENTATION recognizing December, 2016 as Lamorinda Wine Growers Association (LWGA) month in Contra Costa County for its achievement in attaining the Lamorinda American Viticulture Area designation. (Supervisor Andersen)   DISCUSSION ITEMS   D. 1 CONSIDER Consent Items previously removed.   D. 2 PUBLIC COMMENT (2 Minutes/Speaker)   D.3 CONSIDER waiving the 180-day "sit-out period" for Ralph Simmons, retired Information Systems Programmer Analyst, Department of Information Technology, and approving and authorizing the hiring of Ralph Simmons as a temporary County employee for the period December 6, 2016 through June 30, 2017. (Sheryl Webster, Department of Information Technology)   D.4 HEARING on the itemized costs of abatement for property located at 401 Market Ave., Richmond, California (Leona M. Harmon, Owner). (Jason Crapo, Conservation and Development Department)   D.5 CONSIDER introducing Ordinance No. 2016-24, which would require drug D.5 CONSIDER introducing Ordinance No. 2016-24, which would require drug manufacturers to establish a stewardship program for the collection and disposal of unwanted prescription drugs, WAIVE reading, and FIX December 13, 2016, for adoption as recommended by the Family and Human Services Committee. (Daniel Peddycord, Public Health Director)   D. 6 CONSIDER reports of Board members.   Closed Session   ADJOURN   CONSENT ITEMS   Road and Transportation   C. 1 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a contract amendment with MGE Engineering, Inc., effective December 31, 2016 , to extend the term from December 31, 2016 through April 30, 2018 with no increase to the original payment limit of $250,000, for on-call structural engineering services, Countywide. (100% Local Road Funds)   C. 2 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute the Longitudinal Pipeline Agreement with Union Pacific Railroad Company, for an underground 18 inch longitudinal storm drain for the Byron Highway - Camino Diablo Intersection Improvements Project, Byron area. (23% Highway Safety Improvement Program Grant Funds, 17% Measure J Return to Source Funds, 48% Local Road Funds and 12% East County Regional Area of Benefit Funds)   C. 3 APPROVE the 2016 Slurry Seal project contingency fund increase of $5,000 for a new contingency fund total of $88,684, and a new payment limit of $925,529, effective December 6, 2016, as recommended by the Public Works Director and APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Contract Change Order No. 2 with Pavement Coatings, Co., Alamo, Clayton, and Walnut Creek areas. (100% Local Road Funds)   C. 4 ADOPT Resolution No. 2016/662 accepting as complete the contracted work performed by Bay Cities Paving & Grading, Inc., for the Canal Road Sidewalk and Bike Lane Project, as recommended by the Public Works Director, Bay Point area. (35% Congestion Mitigation and Air Quality Lifeline Transportation Grant Funds, 16% Safe Routes to School Funds and 49% Local Gas Tax Funds)   C. 5 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute C. 5 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a Utility Relocation Agreement with the Contra Costa Water District for the Marsh Creek Road Bridge Replacement Project, Clayton area. (100% Contra Costa Water District Funds)   C. 6 AWARD and AUTHORIZE the Public Works Director, or designee, to execute three construction contracts with GradeTech, Inc., and Hess Concrete Construction Co., Inc., in the amount of $500,000 each, and Engineered Soil Repairs, Inc., in the amount of $300,000, for the 2017 On-Call Contract(s) for Various Road, Flood Control, and Airport Maintenance Work, Countywide. (100% Local Road Funds)   Engineering Services   C. 7 ADOPT Resolution No. 2016/602 approving the Stormwater Management Facilities Operation and Maintenance Agreement for minor subdivision MS14-00006, for a project being developed by MMA Homes 2013, LLC, as recommended by the Public Works Director, Walnut Creek area. (No fiscal impact)   C. 8 APPROVE the Fiscal Year 2016/17 Dougherty Valley Maintenance County Service Area M-29 budget totaling $21,881,281, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (100% County Service Area M-29 Funds)   C. 9 ADOPT Resolution No. 2016/654 approving the second extension of the Subdivision Improvement Agreement (Right-of-Way Landscaping) for subdivision SD06-09134, for a project being developed by Shapell Homes, A Division of Shapell Industries, Inc., a Delaware corporation, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (No fiscal impact)   C. 10 ADOPT Resolution No. 2016/655 ratifying the prior decision of the Public Works Director, or designee, to fully close a portion of Knightsen Avenue between Delta Road and Curlew Connex, and all of 2nd Street on November 26, 2016 from 2:00 p.m. through 7:00 p.m., for the purpose of the Christmas Tree Lighting and Parade, Knightsen area. (No fiscal impact)   C. 11 ADOPT Resolution No. 2016/658 approving the second extension of the Subdivision Improvement Agreement (Right-of-Way Landscaping) for subdivision SD08-09245, for a project being developed by Shapell Homes, A Division of Shapell Industries, Inc., A Delaware Corporation, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (No Fiscal Impact)   Special Districts & County Airports Special Districts & County Airports   C. 12 APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a month-to-month hangar rental agreement with David Minor for a T-hangar at Buchanan Field Airport effective November 15, 2016 in the monthly amount of $394.10. (100% Airport Enterprise Fund)   C. 13 AUTHORIZE the Director of Airports, or designee, to evaluate proposals for development of approximately 4.6 acres on the north side of Buchanan Field Airport known as Parcel C and negotiate a long-term ground lease for consideration by the Board. (100% Airport Enterprise Fund)   C. 14 APPROVE and AUTHORIZE the Chair of the Board of Supervisors, as governing board of the Contra Costa County Flood Control and Water Conservation District, to execute a reimbursement agreement with Tri Pointe Homes, Inc., in an amount not to exceed $866,170 for Drainage Area 52C improvements for the period December 6, 2016 through December 6, 2026, Brentwood area. (100% Drainage Area 52C Funds)   C. 15 APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a month-to-month hangar rental agreement with Andrew Wells for a shade hangar at Buchanan Field Airport effective November 19, 2016 in the monthly amount of $177.07. (100% Airport Enterprise Fund)   C. 16 APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a month-to-month hangar rental agreement with Peter Monillas for a T-hangar at Buchanan Field Airport effective November 18, 2016 in the monthly amount of $394.10. (100% Airport Enterprise Fund)   Claims, Collections & Litigation   C. 17 DENY claims First Transit, Inc. & Jamon Wilkins, Nancy Clark, 21st Century Insurance as subrogee of William Walker, Vickie Foreman, and Domingo Pascua. DENY late claims filed by Eugene Mangini and Charles Paclik.   Honors & Proclamations   C. 18 ADOPT Resolution No. 2016/679 recognizing Bob Simmons of the Walnut Creek City Council, as recommended by Supervisor Andersen.   C. 19 ADOPT Resolution No. 2016/636 recognizing December 2016 as Lamorinda C. 19 ADOPT Resolution No. 2016/636 recognizing December 2016 as Lamorinda Wine Growers' Association Month in Contra Costa County for its achievement in attaining the Lamorinda American Viticulture Area designation, as recommended by Supervisor Andersen.   C. 20 ADOPT Resolution No. 2016/660 recognizing Karen Keene, Senior Legislative Representative and Director of Federal Affairs for the California State Association of Counties and the County Engineers Association of California, on the occasion of her retirement, as recommended by the Public Works Director. (No Fiscal Impact)   C. 21 ADOPT Resolution No. 2016/661 recognizing Roylen Stack for thirty-two years of dedicated service to Contra Costa County and her retirement from public service as recommended by the Health Services Director.   C. 22 ADOPT Resolution No. 2016/673 recognizing Don Lau's many years of community service, as recommended by Supervisor Gioia.   Ordinances   C. 23 RATIFY Moraga-Orinda Fire Protection District Ordinance No. 16-02, adopting the 2016 California Fire Code with local amendments and with County’s modifications, as recommended by the County Building Official. (No fiscal impact)   C. 24 RATIFY San Ramon Valley Fire Protection District Ordinance No. 34, adopting the 2016 California Fire Code with local amendments and with County’s modifications, as recommended by the County Building Official. (No fiscal impact)   C. 25 INTRODUCE Ordinance 2016-26, amending Section 25-4.608 of the County Ordinance Code, to authorize the evaluation and consideration of competing public interests under Government Code section 6255 when responding to Public Records Act requests; WAIVE reading, and FIX December 13, 2016 for adoption, as recommended by the County Administrator.   Hearing Dates   C. 26 FIX a public hearing for December 20, 2016, at 9:00 a.m., in Room 107, at the Board of Supervisors’ Chambers, 651 Pine Street, Martinez, California, to consider updates of Underground Utility District No. 31, Willow Pass Rd./Bailey Rd., Bay Point Area, as recommended by the Public Works Director. (100% California Public Utilities Commission, Rule 20A Program)   C. 27 FIX a public hearing for December 13, 2016, at 9:30 a.m., in Room 107, at the Board of Supervisor's Chambers, 651 Pine Street, Martinez, California, to consider adopting Resolution No. 2016/548 authorizing two minor lot line adjustments and a Williamson Act contract rescission and approval on property owned by Ronald and Shirley Nunn in the Brentwood area, as recommended by the Conservation and Development Director. (100% Applicant fees)   C. 28 FIX a public hearing for December 20, 2016, at 9:00 a.m., in Room 107, at the Board of Supervisors’ Chambers, 651 Pine Street, Martinez, California, to consider adoption of Ordinance No. 2016-25 establishing transportation mitigation fees to be imposed on new development within the Alamo Area of Benefit, as recommended by the Public Works Director. (100% Alamo Area of Benefit Fund)   Appointments & Resignations   C. 29 APPOINT Lanita Mims to the District III-A seat on the Alcohol and Other Drugs Advisory Board, as recommended by Supervisor Piepho.   C. 30 APPOINT Robin Tanner to the Appointed 2 seat on the El Sobrante Municipal Advisory Council, as recommended by Supervisor Gioia.   C. 31 APPOINT Fred Adams to the Member-At-Large #1 seat and Summer Selleck to the Member-At-Large #7 seat on the Advisory Council on Aging with terms expiring September 30, 2018, as recommended by the Family and Human Services Committee.   C. 32 ACCEPT the resignation of Hayden Padgett, DECLARE a vacancy in District II-A seat on the Alcohol and Other Drugs Advisory Board of Contra Costa County, and DIRECT the Clerk of the Board to post the vacancy, as recommended by Supervisor Andersen.   C. 33 ACCEPT the resignation of Stacey Howard, DECLARE a vacancy in the District II seat on the Contra Costa Commission for Women, and DIRECT the Clerk of the Board to post the vacancy, as recommended by Supervisor Andersen.   C. 34 ACCEPT the resignation of Lore Konieczny, DECLARE a vacancy in the District II seat on the Arts and Culture Commission of Contra Costa County, and DIRECT the Clerk of the Board to post the vacancy, as recommended by Supervisor Andersen.   C. 35 ACCEPT the resignation of Frank Robertson, DECLARE a vacancy in the District II seat on the Contra Costa County Merit Board, and DIRECT the Clerk of the Board to post the vacancy, as recommended by Supervisor Andersen.   C. 36 APPOINT Anthony Rodigin, M.D., to the C 4 - Emergency Department C. 36 APPOINT Anthony Rodigin, M.D., to the C 4 - Emergency Department Physician seat on the Emergency Medical Care Committee, as recommended by the Health Services Director.   C. 37 APPOINT Jason Wallace to the B 3 - American Red Cross seat on the Emergency Medical Care Committee, as recommended by the Health Services Director.   Appropriation Adjustments   C. 38 Law Enforcement Training Center (0258): APPROVE Appropriation and Revenue adjustment No. 5027 authorizing new revenue in the amount of $12,500 from Bay Alarm in the Sheriff's Law Enforcement Training Center and appropriating it for use as scholarship funds for Deputy Sheriff recruits. (100% Restricted Donation revenue)   C. 39 Sheriff's Office (0255): APPROVE Appropriation and Revenue Adjustment No. 5028 authorizing a reduction of revenue in the amount of $849,244 for the Sheriff's Office and related reductions to expenditure appropriations to reflect the Remote Access Network Board approved budget fiscal year 2016-17 to support Cal-ID. (No net fiscal impact)   C. 40 Employment and Human Services (0502): APPROVE Appropriation and Revenue Adjustment No. 5029 authorizing an adjustment to the federal, State and County expenditure and revenue budgets based on revised caseload projections for Foster Care, KinGAP, Emergency Assistance Foster Care, and Adoptions Assistance programs.   C. 41 Employment and Human Services Departments (0501, 0502, 0504): APPROVE Appropriation and Revenue Adjustment No. 5032 authorizing an adjustment to the Federal, State and County expenditure and revenue budgets based on revised contract expenditures for County Expense Claim Administrative programs.   Personnel Actions   C. 42 ADOPT Position Adjustment Resolution No. 21992 to add one Computer Operator I (represented) position in the Operations Division of the Department of Information Technology. (100% Offset by charges to user departments)   Grants & Contracts   APPROVE and AUTHORIZE execution of agreements between the County and the following agencies for receipt of fund and/or services:   C. 43 APPROVE and AUTHORIZE the Chief Information Officer-Department of C. 43 APPROVE and AUTHORIZE the Chief Information Officer-Department of Information Technology, or designee, to execute a contract with the City of Richmond to pay the County at a rate of $128 per hour for the County Department of Information Technology to provide radio communication maintenance services to the Richmond Police Department, for the period July 1, 2016 through June 30, 2017. (100% City funds)   C. 44 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with the City and County of San Francisco, including full indemnification of the City and County of San Francisco, to pay the County an amount not to exceed $504,229 as part of the 2016 U.S. Department of Homeland Security, Urban Area Security Initiative Grant for homeland security related projects within the County for the period November 1, 2016 through the end of the grant funding. (100% Federal)   C. 45 ADOPT Resolution No. 2016/659 approving and authorizing the County Probation Officer, or designee, to apply for and accept funding under the Juvenile Accountability Block Grant Evidenced-Based Training Project grant from the California Board of State and Community Corrections in the amount not to exceed $19,995 to enhance cognitive behavioral treatment services for youth on probation for the period November 1, 2016 through February 28, 2018. (90% State, 10% County match)   C. 46 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Chevron Services Company, a Division of Chevron USA, Inc., to pay the County an amount not to exceed $110,000 for the County’s Public Health Laboratory to provide quantiferon testing services, for the period October 15, 2016 through October 15, 2019. (No County match)   C. 47 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute the third contract amendment, effective June 20, 2016, with Global Tel*Link Corporation to modify the term of the contract, establish rate changes for inmate telephone calls and to memorialize prior calling rate changes. (100% fee revenue, no net County cost)   C. 48 APPROVE and AUTHORIZE the Health Services Director, or designee, to submit a grant application to the California Department of Resources Recycling and Recovery, to pay the County an amount not to exceed $450,000 to administer the Environmental Health Waste Tire Enforcement Program for the period June 30, 2017 through September 28, 2018. (No County match)   C. 49 ADOPT Resolution No. 2016/667 approving and authorizing the District C. 49 ADOPT Resolution No. 2016/667 approving and authorizing the District Attorney, or designee, to submit an application and execute a grant award agreement, and any amendments or extensions thereof, pursuant to State guidelines, with the California Governor's Office of Emergency Services, Criminal Justice/Emergency Management & Victim Services Branch, in the amount of $50,000 for the Human Trafficking Advocacy Program, for the period October 1, 2016 through September 30, 2017. (80% State, 20% In-Kind match)   APPROVE and AUTHORIZE execution of agreement between the County and the following parties as noted for the purchase of equipment and/or services:   C. 50 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Tetra Tech, Inc., in an amount not to exceed $112,500 to develop an update to the County's Local Hazard Mitigation Plan for the period September 1, 2016 through August 1, 2018. (75% Federal, 25% In-Kind match)   C. 51 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Animal Services Director, a purchase order with Pet Food Express in an amount not to exceed $350,000 to procure animal feed and supplies for the period November 1, 2016 through October 31, 2017. ( 54% City revenues, 37% User fees, and 9% County)   C. 52 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract amendment, effective July 1, 2016, with One Solution Technology, to increase the payment limit by $401,000 to a new payment limit of $869,000 for Child Location of Utilization Database System software for managing County's child and family eligibility determination, enrollment, assessment data, and attendance management solutions, with no change to term of July 1, 2015 through June 30, 2018. (50% State, 50% Federal)   C. 53 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract amendment with All Health Services Corporation, effective July 1, 2016, to increase the payment limit by $2,389,412 to a new payment limit of $4,356,412 to provide additional hours of temporary medical staffing services at Contra Costa Regional Medical Center and Health Centers, with no change in the original term of October 1, 2015 through September 30, 2017. (100% Hospital Enterprise Fund I)   C. 54 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract with Julia Dyckman Andrus Memorial, Inc., in an amount not to exceed $104,730 to implement a trauma-responsive model of services and practices in Children and Family Services Bureau programs for the period January 1 through December 31, 2017. (50% State, 50% Federal)   C. 55 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute C. 55 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a contract amendment to the Consulting Services Agreement with Kitchell/CEM, Inc., effective December 6, 2016, to extend the term through December 31, 2019 and increase the payment limit by $900,000 to a new payment limit of $1,400,000, to continue providing “on-call” construction management/project management services. (100% Various Funds)   C. 56 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a contract amendment with Carey & Co., Inc., to extend the term through March 31, 2017 and increase the payment limit by $110,000 to a new payment limit of $830,000 to provide additional construction administration services for exterior renovations at 625 Court Street, Martinez Project. (100% General Fund)   C. 57 ADOPT Resolution No. 2016/651, approving and authorizing the County Administrator, or designee, to execute an agreement with the City of Concord apportioning sales tax revenue from the development of approximately 4.6 acres on the north side of Buchanan Field Airport known as Parcel C, located partially in the City of Concord and partially in the unincorporated county area.   C. 58 ADOPT Resolution No. 2016/652 approving and authorizing the County Probation Officer, or designee, to apply for, accept, and execute a grant contract with the California Board of State and Community Corrections in an amount not to exceed $117,238 to continue facilitation of Proud Parenting Programs for young fathers and mothers involved in the criminal justice system for the period July 1, 2016 through June 30, 2017. (90% State, 10% STAND! For Families Free of Violence)   C. 59 AWARD and AUTHORIZE the Public Works Director, or designee, to execute a contract with Consolidated CM in an amount not to exceed $900,000 to provide as-needed construction management/project management services for the period December 6, 2016 through December 31, 2019, with a County option to extend the Agreement to December 31, 2020 if elected by the Public Works Director, Countywide. (100% Various Funds)   C. 60 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with William E. Berlingieri, M.D., in an amount not to exceed $313,600 to provide outpatient psychiatric services to adult clients in West Contra Costa County, for the period January 1 through December 31, 2017. (100% Mental Health Realignment)   C. 61 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a contract amendment, effective December 6, 2016, with Anchor Engineering, Inc., to extend the term through December 31, 2019 and increase the payment limit by $900,000 to a new payment limit of $1,400,000, to continue providing “on-call” construction management/project management services. (100% Various Funds)   C. 62 APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a contract amendment with KMD Architects, to increase the payment limit by $95,000, to a new payment limit of $305,000, to provide additional architectural and engineering consulting services in connection with the County’s funding application to the California Board of State and Community Corrections for $80 million for the construction of the West County Re-entry Treatment and Housing Replacement Project, Richmond area. (100% General Fund)   C. 63 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract amendment effective December 1, 2016 with Shaista Rauf, M.D., to add electromyography neurology services, with no change in the original payment limit of $720,000 and no change in the term of September 1, 2016 through August 31, 2019. (100% Hospital Enterprise Fund I)   C. 64 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Sheriff-Coroner, a purchase order amendment with Allen Packaging Company to increase the payment limit by $35,000 to a new payment limit of $160,000 to provide three-compartment trays for Seal-a-Meal food to be used at the West County, Martinez, and Marsh Creek Detention Facilities, with no change to the contract term of January 1 through December 31, 2016 (100% General Fund)   C. 65 APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute a contract amendment with Lawrence G. Mallon, Esquire, to extend the term from December 31, 2016 through December 31, 2018 with no change to the payment limit of $150,000, to provide technical assistance services related to the San Francisco to Stockton Navigation Improvement Study and other navigation projects. (100% Ship Channel Maintenance Assessment District funding)   C. 66 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with West Coast Retina Medical Group, Inc., in an amount not to exceed $150,000 to provide ophthalmology services for Contra Costa Health Plan members and County recipients, for the period January 1, 2017 through December 31, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 67 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract containing modified indemnification language with Oliver Wyman Actuarial Consulting, Inc., in an amount not to exceed $405,000, to provide actuarial services for the Contra Costa Health Plan for the period December 1, 2016 through November 30, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 68 APPROVE and AUTHORIZE the Health Services Director, or designee, to C. 68 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Sharon B. Drager, M.D., Professional Corporation, in an amount not to exceed $150,000 to provide vascular surgery services to Contra Costa Health Plan members and County recipients for the period December 1, 2016 through November 30, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 69 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Gretchen D. Graves (dba Gretchen D. Graves, M.D.), in an amount not to exceed $500,000 to provide pediatric primary care services for Contra Costa Health Plan members and County recipients, for the period December 1, 2016 through November 30, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 70 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Juan R. Sequeira, M.D., in an amount not to exceed $300,000 to provide primary care physician services for Contra Costa Health Plan members and County recipients, for the period December 1, 2016 through November 30, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 71 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Abbas Mahdavi, M.D. (dba Abbas Mahdavi, M.D, Inc.), in an amount not to exceed $800,000 to provide pediatric primary care services to Contra Costa Health Plan members, for the period December 1, 2016 through November 30, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 72 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with William W. Chen, M.D., Medical Corporation, in an amount not to exceed $410,000 to provide primary care, allergy and immunology services to Contra Costa Health Plan members, for the period January 1, 2017 through December 31, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   C. 73 APPROVE and AUTHORIZE the Purchasing Agent, or designee to execute, on behalf of the Public Works Director, a purchase order amendment with Walnut Creek Ford, to extend the term from December 31, 2016 through December 31, 2017 and increase the payment limit by $250,000 to a new payment limit of $410,000, for Ford parts and accessories, Countywide. (100% Internal Service Fund-Fleet)   C. 74 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Law Search Associates, LLC (dba Legal Research Associates), in an amount not to exceed $288,000 for law services to adult inmates incarcerated in County detention facilities for the period January 1, 2016 through December 31, 2018. (100% Inmate Welfare Fund)   C. 75 APPROVE and AUTHORIZE the Health Services Director, or designee, to C. 75 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with FirstWatch Solutions in an amount not to exceed $500,000 to provide data link services for the Emergency Medical Services web-based data surveillance systems, for the period January 1, 2017 through December 31, 2019. (100% Hospital Enterprise Fund I)   C. 76 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase order with Patterson Medical, Inc., in an amount not to exceed $300,000 for rehabilitation therapy and physical therapy supplies at the Contra Costa Regional Medical and Health Centers for the period December 1, 2016 through November 30, 2019. (100% Hospital Enterprise Fund I)   C. 77 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase order with Optiv Security, Inc., in an amount not to exceed $260,000 for Proofpoint software and support for the period November 8, 2016 through November 7, 2019. (100% Hospital Enterprise Fund I)   C. 78 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Department, a purchase order with Sam Clar in the amount of $398,000 to procure furniture for the department's Information Technology Division relocation to 2400 Bisso Lane, for the period November 1, 2016 through January 30, 2017. (100% Hospital Enterprise Fund I)   C. 79 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract amendment with La Clinica De La Raza, Inc., effective December 1, 2016, to extend the term from April 30, 2017 through December 31, 2017 and increase the payment limit by $289,240 to a new payment limit of $692,440 to provide additional primary care medical services for the Contra Costa Cares Program. (33% County, 17% CCHP Enterprise Fund II, 50% other hospital entities)   C. 80 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract amendment, effective December 1, 2016, with Lifelong Medical Care, to extend the term from April 30 through December 31, 2017 and increase the payment limit by $311,528 to a new payment limit of $714,728, to provide additional primary care medical services for the Contra Costa Cares Program. (33% County, 17% CCHP Enterprise Fund II, 50% other hospital entities)   C. 81 ADOPT Resolution No. 2016/668 accepting as complete the contracted work performed by Demolition Services and Grading, Inc., for the demolition of Assessor’s Parcel Nos. 517-320-018 and 517-320-019, also identified as 3939 Bissell Avenue in Richmond, as recommended by the Public Works Director. (100% General Fund)   C. 82 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Via, Inc., in an amount not to exceed $500,000 to provide written language translation services to County’s Health Services Department, for the period December 1, 2016 through November 30, 2019. (100% Hospital Enterprise Fund I)   C. 83 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Lee A. Shratter, M.D., A Professional Corporation, in an amount not to exceed $900,000 to provide radiology services at Contra Costa Regional Medical Center and Health Centers, for the period January 1, 2017 through December 31, 2019. (100% Hospital Enterprise Fund I)   C. 84 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Echo Consulting Services of California, Inc., in an amount not to exceed $1,900,000, for hardware, software, maintenance, and implementation services for the Echo Sharecare Billing System, for the period December 15, 2016 through June 30, 2019. (100% Hospital Enterprise Fund I)   C. 85 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract amendment with International Business Machines Corporation, to extend the term through December 31, 2019 and increase the payment limit by $150,000 to a new payment limit of $265,000, for continued ARIES/COPLINK database software and integration services. (100% ARIES User Fees)   C. 86 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase order with R-Computer, LLC, in an amount not to exceed $113,500 for annual IBM software maintenance and support renewal for the period January 1 through December 31, 2017. (100% Hospital Enterprise Fund I)   C. 87 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract amendment, effective December 1, 2016, with Bright Path Therapists, to increase the payment limit by $100,000 to a new payment limit of $200,000 with no change in the original term of July 1, 2016 through June 30, 2017, to provide additional occupational and physical therapy services to eligible children. (50% State California Children’s Services and 50% County funds)   C. 88 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract amendment with Synesis, Inc., to extend the term from November 30, 2016 through November 30, 2017 and increase the payment limit by $50,000 to a new payment limit of $300,000, for continued programming, database mapping and maintenance services for the Automated Regional Information Exchange System (ARIES). (80% Federal, 20% ARIES User Fees)   C. 89 APPROVE and AUTHORIZE the Employment and Human Services Director, or C. 89 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract with Marvell C. Allen (dba Millennium Career Advantage) in an amount not to exceed $163,200 to provide leadership development services for the period January 1 through September 30, 2017. (45% Federal, 47% State, 8% County)   C. 90 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Ron Haver in an amount not to exceed $30,000 for helicopter pilot services for the period January 1 through December 31, 2017. (65% State, 34% CSA P-6 zone funds, 1% Agency user fees)   C. 91 APPROVE and AUTHORIZE the Human Resources Director, or designee, to execute a contract including modified indemnification language with Kaiser Foundation Health Plan, Inc., to provide a Health Savings Account option to employees enrolled in the Kaiser High Deductible Health Plan. (No County cost)   C. 92 APPROVE and AUTHORIZE the Human Resources Director, or designee, to execute a contract including modified indemnification language with Vision Service Plan to provide a voluntary vision plan for employees and their dependents, for the period January 1, 2017 and ending December 31, 2018. (No County cost)   C. 93 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Steven A. Harrison, M.D., APC, in an amount not to exceed $650,000 to provide ophthalmology services for Contra Costa Health Plan members, for the period December 1, 2016 through November 30, 2018. (100% Contra Costa Health Plan Enterprise Fund II)   Other Actions   C. 94 APPROVE the updated In-Home Supportive Services Public Authority Advisory Committee Policies and Procedures, as recommended by the Employment and Human Services Director.   C. 95 CONTINUE the emergency action originally taken by the Board of Supervisors on November 16, 1999, and most recently approved by the Board on November 15, 2016, regarding the issue of homelessness in Contra Costa County, as recommended by the Health Services Director. (No fiscal impact)   C. 96 ACCEPT the 2015 Annual Report for Bethel Island Municipal Advisory Council's 2015 Workplan, as recommended by Supervisor Piepho.   C. 97 ACCEPT the 2015 Annual Report for Knightsen Town Advisory Council's 2015 Workplan, as recommended by Supervisor Piepho.   C. 98 ACCEPT the 2015 Annual Report for Byron Municipal Advisory Council 2015 C. 98 ACCEPT the 2015 Annual Report for Byron Municipal Advisory Council 2015 Workplan, as recommended by Supervisor Piepho.   C. 99 ACCEPT the 2015 Annual Report for Diablo Municipal Advisory Council 2015 Workplan, as recommended by Supervisor Piepho.   C.100 ADOPT Resolution No. 2016/665 authorizing the issuance of Multifamily Housing Revenue Bonds by the California Public Finance Authority in an amount not to exceed $28,000,000 to provide financing for the costs of acquisition, rehabilitation, improvement and equipping of a multifamily housing development commonly known as Willowbrook Apartments, a 72-unit residential rental housing development located at 110 Bailey Road, Bay Point area, as recommended by the Conservation and Development Director. (100% Special Revenue funds)   C.101 APPROVE the Heating, Ventilation, and Air Conditioning Equipment Replacement Project at 2530 Arnold Drive, Martinez, and related actions under the California Environmental Quality Act, as recommended by the Public Works Director. (100% General Fund)   C.102 APPROVE the design and bid documents, including plans and specifications, and related actions under the California Environmental Quality Act for the Expansion of the Remodeling of the 1st, 3rd, and 4th Floors at 900 Ward Street, Martinez, for the District Attorney’s Office Project; and AUTHORIZE the Public Works Director, or designee, to solicit bids to be received on or about January 12, 2017, and to issue bid addenda, as needed, for clarification of the contract bid documents. (100% General Fund)   C.103 AUTHORIZE the Auditor-Controller to make a deduction from special tax proceeds at the rate of $0.09 per special assessment, pursuant to Board Resolution No. 84/332, to mitigate the Assessor's costs to administer the special assessments on behalf of other local agencies, as recommended by the Assessor. (Cost recovery to General Fund)   C.104 ADOPT Resolution No. 2016/653 delegating authority to the Executive Director of the California Electronic Recording Transaction Network Authority (CERTNA) to execute, on behalf of the County, certain Memoranda of Understanding with electronic recording submitters, and APPROVE and AUTHORIZE the County Clerk-Recorder to execute a certificate of such delegation to the CERTNA Executive Director. (No fiscal impact)   C.105 APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute legal documents to loan $1,475,000 in HOME Investment Partnerships Act and $625,000 in Community Development Block Grant funds to El Cerrito Senior, L.P., for the construction of Hana Gardens Apartments in El Cerrito, and ADOPT related findings under the California Environmental Quality Act. (100% Federal funds)   C.106 ACCEPT the report from the Employment and Human Services Department on Human Trafficking, Commercially Sexually Exploited Children, and the Family Justice Centers, as recommended by the Family and Human Services Committee.   C.107 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to seek reimbursement from California Department of Education in an amount not to exceed $3,352, to maintain Child Days of Enrollment during emergency closures at Richmond College Prep Preschool, Las Deltas Children's Center, and Contra Costa College Children's Center during the 2015-16 fiscal year. (100% State funding)   C.108 APPROVE Amended Conflict of Interest Code for the San Ramon Valley Fire Protection District.   C.109 APPROVE Amended Conflict of Interest Code for the Moraga-Orinda Fire Protection District of Contra Costa County.   C.110 ADOPT Resolution No. 2016/663 authorizing the issuance of Multifamily Housing Revenue Bonds in an amount not to exceed $21,000,000 to provide financing for the costs of acquisition and construction of Hana Gardens Senior Apartments in El Cerrito, as recommended by the Conservation and Development Director. (100% Special Revenue Funds)   C.111 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Point Comfort Underwriters, Inc., to administer delivery and payment of healthcare services to unaccompanied refugee children in accordance with federal requirements, for the period November 1, 2016 through October 31, 2019. (Non-financial agreement)   C.112 ACCEPT quarterly report of the Post Retirement Health Benefits Trust Agreement Advisory Body, as recommended by the Post Retirement Health Benefits Trust Agreement Advisory Body.   C.113 ADOPT Resolution No. 2016/666 as approved by the Retirement Board, which establishes retirement plan contribution rates effective July 1, 2017 through June 30, 2018, as recommended by the County Administrator.   C.114 RECEIVE 2016 Annual Report submitted by the Aviation Advisory Committee. (No Fiscal Impact)   C.115 APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Sheriff's Deputy Jeffery Rodier to pay the County $1.00 for retired Sheriff's Service Dog "Gizmo" on January 21, 2017, as recommended by the Sheriff-Coroner. (100% Revenue)   C.116 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to issue a Request for Proposal (RFP) #1150, in an amount not to exceed $1,700,000, for youth development services to eligible in-school and out-of-school youth, for the period July 1, 2017 through June 30, 2018. (100% Federal)   C.117 REFER to the Internal Operations Committee oversight on the potential development of an ordinance to authorize administrative penalties for barking dogs and other noisy animals and to limit the number of roosters on private property in the county unincorporated areas, as recommended by the Animal Services Director.   GENERAL INFORMATION The Board meets in all its capacities pursuant to Ordinance Code Section 24-2.402, including as the Housing Authority and the Successor Agency to the Redevelopment Agency. Persons who wish to address the Board should complete the form provided for that purpose and furnish a copy of any written statement to the Clerk. Any disclosable public records related to an open session item on a regular meeting agenda and distributed by the Clerk of the Board to a majority of the members of the Board of Supervisors less than 96 hours prior to that meeting are available for public inspection at 651 Pine Street, First Floor, Room 106, Martinez, CA 94553, during normal business hours. All matters listed under CONSENT ITEMS are considered by the Board to be routine and will be enacted by one motion. There will be no separate discussion of these items unless requested by a member of the Board or a member of the public prior to the time the Board votes on the motion to adopt. Persons who wish to speak on matters set for PUBLIC HEARINGS will be heard when the Chair calls for comments from those persons who are in support thereof or in opposition thereto. After persons have spoken, the hearing is closed and the matter is subject to discussion and action by the Board. Comments on matters listed on the agenda or otherwise within the purview of the Board of Supervisors can be submitted to the office of the Clerk of the Board via mail: Board of Supervisors, 651 Pine Street Room 106, Martinez, CA 94553; by fax: 925-335-1913. The County will provide reasonable accommodations for persons with disabilities planning to attend Board meetings who contact the Clerk of the Board at least 24 hours before the meeting, at (925) 335-1900; TDD (925) 335-1915. An assistive listening device is available from the Clerk, Room 106. Copies of recordings of all or portions of a Board meeting may be purchased from the Clerk of the Board. Please telephone the Office of the Clerk of the Board, (925) 335-1900, to make the necessary arrangements. Forms are available to anyone desiring to submit an inspirational thought nomination for inclusion on the Board Agenda. Forms may be obtained at the Office of the County Administrator or Office of the Clerk of the Board, 651 Pine Street, Martinez, California. Subscribe to receive to the weekly Board Agenda by calling the Office of the Clerk of the Board, (925) 335-1900 or using the County's on line subscription feature at the County’s Internet Web Page, where agendas and supporting information may also be viewed: www.co.contra-costa.ca.us STANDING COMMITTEES The Ad Hoc on Sustainability Committee (Supervisors Federal D. Glover and John Gioia) TBD The Airport Committee (Supervisors Mary N. Piepho and Karen Mitchoff) meets monthly on the fourth Wednesday of the month at 1:30 p.m. at Director of Airports Office, 550 Sally Ride Drive, Concord. The Family and Human Services Committee (Supervisors Candace Andersen and Federal D. Glover) meets on the second Monday of the month at 1:00 p.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. The Finance Committee (Supervisors Federal D. Glover and Mary N. Piepho) meets on the second Thursday of the month at 10:30 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. The Hiring Outreach Oversight Committee (Supervisors Karen Mitchoff and John Gioia) meets on the second Monday of every other month at 9:00 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. The Internal Operations Committee (Supervisors John Gioia and Candace Andersen) meets on the fourth Monday of the month at 11:00 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. The Legislation Committee (Supervisors Federal D. Glover and Karen Mitchoff) meets on the second Monday of the month at 10:30 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. The Public Protection Committee (Supervisors Candace Andersen and John Gioia) meets on the fourth Monday of the month at 9:00 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. The Transportation, Water & Infrastructure Committee (Supervisors Mary N. Piepho and Candace Andersen) meets on the second Thursday of the month at 1:00 p.m. in Room 101, County Administration Building, 651 Pine Street, Martinez. Ad Hoc On Sustainability TBD TBD See above Airports Committee December 28, 2016 1:30 p.m. See above Family & Human Services Committee December 12, 2016 1:00 p.m. See above Finance Committee December 8, 2016 10:30 a.m. See above Hiring Outreach Oversight Committee December 12, 2016 9:00 a.m. See above Internal Operations Committee Special Meeting December 12, 2016 RM. 107 11:00 a.m. See above Legislation Committee December 12, 2016 Cancelled Special Meeting December 8, 2016 Cancelled 1:30 p.m. See above Public Protection Committee Special Meeting December 12, 2016 RM 107 10:00 a.m. See above Transportation, Water & Infrastructure Committee December 8, 2016 1:00 p.m. See above AGENDA DEADLINE: Thursday, 12 noon, 12 days before the Tuesday Board meetings. Glossary of Acronyms, Abbreviations, and other Terms (in alphabetical order): Contra Costa County has a policy of making limited use of acronyms, abbreviations, and industry-specific language in its Board of Supervisors meetings and written materials. Following is a list of commonly used language that may appear in oral presentations and written materials associated with Board meetings: AB Assembly Bill ABAG Association of Bay Area Governments ACA Assembly Constitutional Amendment ADA Americans with Disabilities Act of 1990 AFSCME American Federation of State County and Municipal Employees AICP American Institute of Certified Planners AIDS Acquired Immunodeficiency Deficiency Syndrome ALUC Airport Land Use Commission AOD Alcohol and Other Drugs ARRA American Recovery & Reinvestment Act of 2009 BAAQMD Bay Area Air Quality Management District BART Bay Area Rapid Transit District BayRICS Bay Area Regional Interoperable Communications System BCDC Bay Conservation & Development Commission BGO Better Government Ordinance BOS Board of Supervisors CALTRANS California Department of Transportation CalWIN California Works Information Network CalWIN California Works Information Network CalWORKS California Work Opportunity and Responsibility to Kids CAER Community Awareness Emergency Response CAO County Administrative Officer or Office CCCPFD (ConFire) Contra Costa County Fire Protection District CCHP Contra Costa Health Plan CCTA Contra Costa Transportation Authority CCRMC Contra Costa Regional Medical Center CCWD Contra Costa Water District CDBG Community Development Block Grant CFDA Catalog of Federal Domestic Assistance CEQA California Environmental Quality Act CIO Chief Information Officer COLA Cost of living adjustment ConFire (CCCFPD) Contra Costa County Fire Protection District CPA Certified Public Accountant CPI Consumer Price Index CSA County Service Area CSAC California State Association of Counties CTC California Transportation Commission dba doing business as DSRIP Delivery System Reform Incentive Program EBMUD East Bay Municipal Utility District ECCFPD East Contra Costa Fire Protection District EIR Environmental Impact Report EIS Environmental Impact Statement EMCC Emergency Medical Care Committee EMS Emergency Medical Services EPSDT Early State Periodic Screening, Diagnosis and Treatment Program (Mental Health) et al. et alii (and others) FAA Federal Aviation Administration FEMA Federal Emergency Management Agency F&HS Family and Human Services Committee First 5 First Five Children and Families Commission (Proposition 10) FTE Full Time Equivalent FY Fiscal Year GHAD Geologic Hazard Abatement District GIS Geographic Information System HCD (State Dept of) Housing & Community Development HHS (State Dept of ) Health and Human Services HIPAA Health Insurance Portability and Accountability Act HIV Human Immunodeficiency Virus HOME Federal block grant to State and local governments designed exclusively to create affordable housing for low-income households HOPWA Housing Opportunities for Persons with AIDS Program HOV High Occupancy Vehicle HR Human Resources HUD United States Department of Housing and Urban Development IHSS In-Home Supportive Services Inc. Incorporated IOC Internal Operations Committee ISO Industrial Safety Ordinance JPA Joint (exercise of) Powers Authority or Agreement Lamorinda Lafayette-Moraga-Orinda Area LAFCo Local Agency Formation Commission LLC Limited Liability Company LLP Limited Liability Partnership Local 1 Public Employees Union Local 1 LVN Licensed Vocational Nurse MAC Municipal Advisory Council MBE Minority Business Enterprise M.D. Medical Doctor M.F.T. Marriage and Family Therapist MIS Management Information System MOE Maintenance of Effort MOU Memorandum of Understanding MTC Metropolitan Transportation Commission NACo National Association of Counties NEPA National Environmental Policy Act OB-GYN Obstetrics and Gynecology O.D. Doctor of Optometry OES-EOC Office of Emergency Services-Emergency Operations Center OPEB Other Post Employment Benefits OSHA Occupational Safety and Health Administration PARS Public Agencies Retirement Services PEPRA Public Employees Pension Reform Act Psy.D. Doctor of Psychology RDA Redevelopment Agency RFI Request For Information RFP Request For Proposal RFQ Request For Qualifications RN Registered Nurse SB Senate Bill SBE Small Business Enterprise SEIU Service Employees International Union SUASI Super Urban Area Security Initiative SWAT Southwest Area Transportation Committee TRANSPAC Transportation Partnership & Cooperation (Central) TRANSPLAN Transportation Planning Committee (East County) TRE or TTE Trustee TWIC Transportation, Water and Infrastructure Committee UASI Urban Area Security Initiative VA Department of Veterans Affairs vs . versus (against) WAN Wide Area Network WBE Women Business Enterprise WCCTAC West Contra Costa Transportation Advisory Committee RECOMMENDATION(S): 1. WAIVE the 180-day "sit-out period" for Ralph Simmons, Information Systems Programmer Analyst, Department of Information Technology. 2. FIND that the appointment of Mr. Simmons is necessary to fill a critically needed position; and 3. APPROVE and AUTHORIZE the hiring of County retiree Ralph Simmons as a temporary County employee for the period December 6, 2016 through June 30, 2017. FISCAL IMPACT: If the request is granted, there will continue to be salary and employment tax payments for the hours provided of approximately $50,409 for up to 960 hours per year. These costs will be offset by savings due to the vacancy of the permanent position. There is no additional fiscal impact. Salary costs are included in the Department's operating budget. BACKGROUND: The Public Employee Pension Reform Act of 2013 requires that active members who retire on or after January 1, 2013 must wait 180 days after retirement before returning to work as a temporary employee. The Act also allows the Board, based on a finding that the appointment is necessary to fill a critically needed position, to waive the 180 day "sit out" period. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sheryl Webster 925-595-3640 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: D.3 To:Board of Supervisors From:Ed Woo, Chief Information Officer Date:December 6, 2016 Contra Costa County Subject:Waiver of 180-day Sit Out Period for County Retiree Ralph Simmons BACKGROUND: (CONT'D) The department would like to hire Mr. Simmons as a temporary employee due to ongoing back-up support for the PeopleSoft Payroll and Human Resources HCM system, Kronos Timekeeping system and continued support for the interfaces for CPAS, a pension administration system, for the Contra Costa County Employees’ Retirement Association. Mr. Simmons retired from the Department of Information Technology on September 1, 2016. He served in a key role in the maintenance and support of various systems Kronos Timekeeping system and the Retirement systems. He worked with the Department of Information Technology for over 18 years, working with PeopleSoft, Kronos and other mainframe systems using COBOL. In the past year, three Senior Analysts who supported our PeopleSoft Human Capital Management (HCM) and Kronos Timekeeping systems retired, promoted or transferred with little notice. This left one Senior Analyst to support the system. The Department of Information Technology started to train a mid-level Analyst and has hired three lower-level Analysts to learn the systems. The PeopleSoft HCM system is currently used to process the County’s payroll, in addition to maintaining human resources and employee benefits records. Mr. Simmons will also ensure PeopleSoft and Kronos daily operations; enhancement request and user support will not be interrupted. During this time Mr. Simmons will be training the new analyst to assume these duties. The Department of Information Technology has been struggling to attract and retain staff with knowledge and skills related to PeopleSoft and mainframe technology. With over 18 years of experience in this area with Contra Costa County, Mr. Simmons is uniquely qualified to perform the necessary training and help with the support. The Department does not have any other staff that possess the specialized technical and business knowledge of the County justice systems and who can complete the work that is essential to the continued support of the PeopleSoft application. CONSEQUENCE OF NEGATIVE ACTION: Disapproval of the request will increase the risk that the County will be unable to process employee Payroll, Human Resources and Employee Benefits timely and accurately, the serious consequences of which cannot be overstated. RECOMMENDATION(S): OPEN the hearing on the costs of abating a public nuisance on the real property located at 401 Market Ave., Richmond, California, Contra Costa County (APN 409-261-013): RECEIVE and CONSIDER the attached itemized report on the abatement costs and any objections thereto from the property owner or other persons with a legal interest in the property; and CLOSE the hearing. DETERMINE the cost of all abatement work and all administrative costs to be $5,467.81. ORDER the itemized report confirmed and DIRECT that it be filed with the Clerk of the Board of Supervisors. ORDER the costs to be specially assessed against the above-referenced property and AUTHORIZE the recordation of a Notice Of Abatement Lien. FISCAL IMPACT: No net fiscal impact. The costs as determined above will be added to the tax roll as a special assessment on this property and will be collected at the same time and in the same manner as ordinary County taxes are collected. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jason Crapo. (925) 674-7722 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: D.4 To:Board of Supervisors From:John Kopchik, Director, Conservation & Development Department Date:December 6, 2016 Contra Costa County Subject:Cost Confirmation Hearing for Real Property Located at 401 Market Ave. Richmond, CA., 94801 BACKGROUND: Contra Costa County Ordinance Code Article 14-6.4 and California Government Code Section 25845 authorize the recovery of abatement costs in public nuisance cases, the recordation of a Notice of Abatement Lien, and inclusion of abatement costs on the tax roll as a special assessment, upon approval of the Board of Supervisors. The Notice and Order to abate was posted on the above-referenced property located in the unincorporated North Richmond area for an unsecured vacant property with trash and debris and was served on the property owner and all persons known to be in possession of the property by certified mail on February 17, 2016. The property owner did not file an appeal of the Notice and Order to Abate. The County Abatement Officer abated the nuisance on April 29, 2016. The property owner was billed for the actual cost of the abatement and all administrative costs. The bill was sent by first-class mail to the property owner on September 7, 2016. The property owner did not pay the bill within 45 days of the date of mailing. Notice of this Cost Hearing was sent to the property owner by certified mail by the Clerk of the Board. For proof of service, see Clerk of the Board at 651 Pine Street, Room 106, Martinez, CA. CONSEQUENCE OF NEGATIVE ACTION: If not approved, the County will not be able to recover costs for abatement on code violations for this property. ATTACHMENTS Itemized Abatement Costs Before and After Photos CONTRA COSTA COUNTY DATE: October 31, 2016 TO: Clerk of the Board FROM: Department of Conservation & Development By: Robert Erickson, Building Inspector II RE: Itemized Report of Abatement Costs The following is an itemized report of the costs of abatement for the below described property pursuant to C.C.C. Ord. Code ' 14- 6.428. OWNER: Leona M. Harmon, TRE POSSESSOR: N/A MORTGAGE HOLDER: N/A ABATEMENT ORDERED DATE: February 17, 2016 ABATEMENT COMPLETED DATE: April 29, 2016 SITE ADDRESS: 401 Market Ave., Richmond, CA., 94801-1643 APN#:409-261-013 PROPERTY DESCRIPTION: Residential AMOUNT OF ABATEMENT COSTS (CCC ORDINANCE CODE 14-6.428) ITEM EXPLANATION COST Notice to Comply (include first 2 inspections) $ 250.00 Site Visits (6 x $100 @) $ 600.00 PIRT (Title Search) $ 150.00 Certified Letter & Regular Mailings $ 42.31 Photos $ 10.50 Contractor hired for abatement BIRV16-00004 $ 4215.00 Compliance Report and Board Hearing $ 200.00 TOTAL $ 5467.81 Abatement costs can be paid at or mailed to Department of Conservation and Development, Building Inspection Division, 30 Muir Rd., Martinez, CA 94553. 401 Market Ave. Richmond,CA.,94801 Before Photos 401 Market Ave. Richmond,CA.,94801 After Photos RECOMMENDATION(S): INTRODUCE Ordinance No. 2016-24, which would require drug manufacturers to establish a stewardship program for the collection and disposal of unwanted prescription drugs, WAIVE reading, and FIX December 13, 2016, for adoption. FISCAL IMPACT: There is no anticipated impact to the County general fund. The proposed Safe Drug Disposal Ordinance would require the producers of covered drugs to fully fund the administrative and operational cost of an approved product stewardship program for the safe disposal of prescription drugs. Revenue from proposed fees to be paid by producers would cover costs incurred by the County health officer related to the inspection of stewardship plans and any related investigation, audits, enforcement and adjudication. BACKGROUND: On April 27, 2010, the Board adopted a resolution supporting Extended Producer Responsibility. It was noted that local governments do not have the resources to adequately APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Enid Mendoza, (925) 335-1039 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: D.5 To:Board of Supervisors From:FAMILY & HUMAN SERVICES COMMITTEE Date:December 6, 2016 Contra Costa County Subject:Introduction of Ordinance No. 2016-24, establishing a prescription drug stewardship program in the unincorporated area BACKGROUND: (CONT'D) address the rising volume of discarded products and that there are significant environmental and health impacts associated with improper management of universal wastes, sharps and other products. Extended producer responsibility (EPR) laws, sometimes referred to as product stewardship laws, assign responsibility for end-of-product life management of consumer products on the manufacturers of those products. Despite association between prescription opioid sales and the increase in accidental deaths from drug overdose there is currently no mandatory statewide drug stewardship program for unwanted household drugs in California. In March 2012, Supervisor Mary Piepho presented a resolution to the Board declaring March as “Prescription Drug Abuse Awareness Month.” Comment was made regarding the importance of safely storing and disposing of medications. Subsequently, at an April 28, 2012, Prescription Drug Take Back event, Supervisor Piepho noted that her office was working with County departments to review and evaluate a “Safe Medication Disposal” ordinance for Contra Costa County. On March 3, 2015, the Board adopted a resolution recognizing March as Prescription Drug Awareness month to bring attention to the seriousness and significance of deaths associated with the misuse of prescription drugs. Supervisor Candace Andersen referenced the importance of disposing unwanted medications when they are no longer needed and Supervisor Piepho indicated that she hoped the County would soon be able to adopt a safe drug disposal ordinance, following Alameda County’s lead. As of October 2016, at least six other California counties have adopted safe drug disposal ordinances that require drug manufacturers to establish product stewardship program for the safe and timely disposal of medications used in households. Over the past year, staff from multiple County departments has worked with Supervisor Piepho and her staff to develop a draft ordinance that would require the producers of covered drugs to create and pay for a system for the safe and convenient disposal of unwanted prescription drugs. The proposed ordinance, which is similar to ordinances adopted by other counties, would require producers of covered prescription medications to establish and pay for a collection system. The goal would be to establish at least three drop-off sites in each of the five supervisorial districts in locations that allow for convenient and equitable access by residents of the unincorporated areas of those districts. If achievement of this goal is not feasible in a supervisorial district, the stewardship program would need to provide for a mail-back service and periodic take-back events that are at least six hours in length, held a least once per quarter and located in at least three locations in the district. Under the proposed ordinance, preference would be given to having retail pharmacies and law enforcement agencies serve as collectors. In addition, mail-back services would need to be made available to individuals who are disabled or homebound. If adopted, the proposed ordinance would require the producer of a covered drug to submit a product stewardship plan to the County health officer, describing how it would provide for the disposal options described above. The proposed ordinance would allow a producer to satisfy its obligations either individually or jointly with other producers, in the form of a stewardship organization. As drafted, the ordinance would require producers to provide notice to all retail pharmacies and all law enforcement agencies located in the County of the opportunity to participate as collectors. On November 14, 2016, the proposed ordinance was presented to the Family and Human Services Committee. Committee members received a report by Public Health Director Daniel Peddycord (attached), heard from members of the public who spoke in support of a safe drug disposal ordinance and then directed the proposed ordinance to be forwarded to the full Board for consideration. CONSEQUENCE OF NEGATIVE ACTION: If Ordinance No. 2016-24 is not introduced, the proposed drug stewardship program would not go into effect. ATTACHMENTS Ordinance No. 2016-24 Report to Family and Human Services Committee RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Contract Amendment No. 2 with MGE Engineering, Inc., effective December 31, 2016 , to extend the term from December 31, 2016, to April 30, 2018, for on-call structural engineering services, with no increase to the original payment limit of $250,000, Countywide. (Project No. 0662-6U4134 and 0662-6U4135) FISCAL IMPACT: Work performed under this amendment is funded by 100% Local Road Funds. BACKGROUND: The Public Works Department is involved in various projects in the County which require structural engineering consulting services for road, flood control, and airport projects. After a solicitation process in 2012, this firm and four other firms were selected to provide structural engineering services on an “on-call” basis. On November 6, 2012, a consulting APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kevin Emigh, (925) 313-2233 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 1 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Contract Amendment No. 2 with MGE Engineering, Inc., Countywide. BACKGROUND: (CONT'D) service agreement with MGE Engineering, Inc. was approved by the Board of Supervisors. Amendment No. 1 extended the termination date from November 5, 2015 to December 31, 2016 and was approved by the Board of Supervisors on November 3, 2015. Since the original consulting service agreement was executed, the Consultant provided on-call structural engineering services on multiple projects. While most of these projects have been completed, the Jersey Island Road Bridge Repair and Clifton Court Road Bridge Repair projects are on-going projects that require Consultant’s engineering services beyond the Agreement’s November 5, 2015, expiration. In order to allow these projects to continue without disruption, the contract is being extended solely for the completion of these two projects. The Consultant needs to complete the project plans and specifications for these projects. Construction for the Jersey Island Road Bridge Repair and the Clifton Court Road Bridge Repair is anticipated to occur next year. No increase in the contract amount is being sought. Approval of Amendment No. 2 for this Consulting Services Agreement will allow the Consultant to continue providing structural engineering consulting services to the Jersey Island Road Bridge Repair and Clifton Court Road Bridge Repair projects through April 30, 2018. CONSEQUENCE OF NEGATIVE ACTION: If the contract amendment is not approved, the Jersey Island Road Bridge Repair and Clifton Court Road Bridge Repair projects will experience delays and added costs as the County solicits for new professional services which will duplicate previous work. RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute the Longitudinal Pipeline Agreement (Agreement) with Union Pacific Railroad Company (UPRR) for the construction, use, maintenance and operation of one underground 18 inch longitudinal pipeline for transporting and conveying storm water at Camino Diablo for the Byron Highway - Camino Diablo Intersection Improvements Project, Byron area. Project No.: 0662-6R4094, Federal Project No.: HSIPL 5928 (117) (District III) FISCAL IMPACT: 23% Highway Safety Improvement Program Grant Funds, 17% Measure J Return to Source Funds, 48% Local Road Funds and 12% East County Regional Area of Benefit Funds. BACKGROUND: Contra Costa County received HSIP funds to improve the Byron Highway and Camino Diablo Intersection, which includes construction of a traffic signal pavement widening, ADA compliant pedestrian facilities, railroad crossing improvements and drainage improvements. On June APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kevin Emigh, (925) 313-2233 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 2 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Approve and Authorize the Longitudinal Pipeline Agreement with Union Pacific Railroad, Byron area. BACKGROUND: (CONT'D) 9, 2015, the County Board of Supervisors approved the Byron Highway - Camino Diablo Intersection Improvement Project and adopted the Mitigated Negative Declaration and the Mitigation Monitoring and Reporting Plan in Compliance with the California Environmental Quality Act. On September 13, 2016, the County Board of Supervisors approved the Public Highway At-Grade Crossing Agreement for the Byron Highway - Camino Diablo Intersection Improvement Project. The purpose of the Longitudinal Pipeline Agreement between the County and UPRR is to allow for the construction, use and future maintenance of storm drain system under the tracks. To complete the Project as planned, the County must enter into said Agreement to facilitate the construction of the storm drain improvements across railroad facilities at Byron Highway and Camino Diablo Road intersection. The conditions include a payment of a $5,000.00 fee for the rights to construct, maintain and repair the storm drain within UPRR right of way. CONSEQUENCE OF NEGATIVE ACTION: The project will not have sufficient land rights to allow construction in accordance with the approved plans and specifications. ATTACHMENTS UPRR Agreement Pipeline Encroachment 080808 Folder No. 02986-54 Last Modified: 03/29/10 Form Approved, AVP-Law LONGITUDINAL PIPELINE AGREEMENT Between Mile Posts 67.15 and 6719 Tracy Subdivision Location: Byron, Contra Costa County, California THIS AGREEMENT (“Agreement”) is made and entered into as of November 8, 2016, (“Effective Date”) by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (“Licensor”) and CONTRA COSTA COUNTY, to be addressed at 255 Glacier Drive, Martinez, California 94553 (“Licensee”). IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Article 1. LICENSOR GRANTS RIGHT. In consideration of the License Fee to be paid by the Licensee and in further consideration of the covenants and agreements herein contained to be by the Licensee kept, observed and performed, the Licensor hereby grants to the Licensee the right to construct and thereafter, during the t erm hereof, to maintain and operate one underground 18 inch longitudinal pipeline for transporting and conveying storm water only (hereinafter the “Pipeline”) in the location shown and in conformity with the dimensions and specifications indicated on the print dated May 03, 2016 and marked Exhibit “A”, attached hereto and hereby made a part hereof. Under no circumstances shall Licensee modify the use of the Pipeline for a purpose other than transporting and conveying storm water, and the Pipeline shall not be used to convey any other substance, any fiber optic cable, or for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement. For the purposes of Exhibit A, Licensee acknowledges that if it or its contractor provides to Railroad digital imagery depicting the Pipeline encroachment, Licensee authorizes Railroad to use the Digital Imagery in preparing the print attached as an exhibit hereto. Licensee represents a nd warrants that through a license or otherwise, it has the right to use the Digital Imagery and to permit Railroad to use the Digital Imagery in said manner. Article 2. LICENSE FEE. Upon execution of this Agreement, the Licensee shall pay to the Licens or a one-time License Fee of Five Thousand Dollars ($5,000.00). Article 3. CONSTRUCTION, MAINTENANCE AND OPERATION. The grant of right herein made to the Licensee is subject to each and all of the terms, provisions, conditions, limitations and covenants set forth herein and in Exhibit B, attached hereto and hereby made a part hereof. Article 4. DEFINITION OF LICENSEE. For purposes of this Agreement, all references in this Agreement to the Licensee shall include the Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority. If a contractor is hired by the Licensee for any work performed on the Pipeline (including initial construction and subsequent relocation or maintenance and repair work), t hen the Licensee shall provide a copy of this Agreement to its contractor, require its contractor to comply with all the terms and provisions hereof relating to the work to be performed. Any contractor or subcontractor shall be deemed an agent of Licensee for the purpose of this Agreement, and Licensee shall require such contractor or subcontractor to release defend and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor herein. Article 5. INSURANCE. A. During the life of the License, Licensee shall fully comply with the insurance requirements described in Exhibit C. B. Failure to maintain insurance as required shall entitle, but not require, Licensor to terminate this License immediately. C. If the Licensee is subject to statute(s) limiting its insurance liability and/or limiting its ability to obtain insurance in compliance with Exhibit C of this lease, those statues shall apply. D. Licensee hereby acknowledges that is has reviewed the requirements of Exhibit C, including without limitation the requirement for Railroad Protective Liability Insurance during construction, maintenance, installation, repair or removal of the pipeline which is the subject of this Agreement. Article 6. TERM. This Agreement shall take effect as of the Effective Date first herein written and shall continue in full force and effect until terminated as herein provided. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written. UNION PACIFIC RAILROAD COMPANY CONTRA COSTA COUNTY By: __________________________________ By: __________________________________ Kylan Crawford Senior Manager Name Printed: __________________________ Title: _________________________________ Pipeline Crossing 07/20/08 Form Approved, AVP Law EXHIBIT B Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED. A. The foregoing grant of right is subject and subordinate to the prior and continuing right and obligation of the Licensor to use and maintain its entire property including the right and power of the Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by the Licensor without liability to the Licensee or to any other party for compensation or damages. B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of the Licensor's property, and others) and the right of the Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. Section 2. CONSTRUCTION, MAINTENANCE AND OPERATION. A. The Pipeline shall be designed, constructed, operated, maintained, repaired, renewed, modified and/or reconstructed by the Licensee in strict conformity with (i) Licensor’s current standards and specifications (“UP Specifications”), except for variances approved in advance in writing by the Licensor’s Assistant Vice President Engineering – Design, or his authorized representative; (ii) such other additional safety standards as the Licensor, in its sole discretion, elects to require, including, without limitation, American Railway Engineering and Maintenance-of-Way Association (“AREMA”) standards and guidelines (collectively, “UP Additional Requirements”), and (iii) all applicable laws, rules and regulations (“Laws”). If there is any conflict between the requirements of any Law and the UP Specifications or the UP Additional Requirements, the most restrictive will apply. B. All work performed on property of the Licensor in connection with the design, construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline shall be done to the satisfaction of the Licensor. C. Prior to the commencement of any work in connection with the design, constructi on, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline from Licensor’s property, the Licensee shall submit to the Licensor plans setting out the method and manner of handling the work, including the shoring and cribbing, if any, required to protect the Licensor's operations, and shall not proceed with the work until such plans have been approved by the Licensor’s Assistant Vice President Engineering Design, or his authorized representative, and then the work shall be done to the satisfaction of the Licensor’s Assistant Vice President Engineering Design or his authorized representative. The Licensor shall have the right, if it so elects, to provide such support as it may deem necessary for the safety of its track or tracks during the time of construction, maintenance, repair, renewal, modification, relocation, reconstruction or removal of the Pipeline, and, in the event the Licensor provides such support, the Licensee shall pay to the Licensor, within fifteen (15) days after bills shall have been rendered therefore, all expenses incurred by the Licensor in connection therewith, which expenses shall include all assignable costs. D. The Licensee shall keep and maintain the soil over the Pipeline thoroughly compacted and the grade even with the adjacent surface of the ground. E. In the prosecution of any work covered by this Agreement, Licensee shall secure any and all necessary permits and shall comply with all applicable federal, state and local laws, regulations and enactments affecting the work including, without limitation, all applicable Federal Railroad Administration regulations. Section 3. NOTICE OF COMMENCEMENT OF WORK / LICENSOR REPRESENTATIVE / SUPERVISION / FLAGGING / SAFETY. A. If an emergency should arise requiring immediate attention, the Licensee shall provide as much notice as practicable to Licensor before commencing any work. In all other situations, the Licensee shall notify the Licensor at least ten (10) days (or such other time as the Licensor may allow) in advance of the commencement of any work upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline. All such work shall be prosecuted diligently to completion. The Licensee will coordinate its initial, and any subsequent work with the following employee of Licensor or his or her duly authorized representative (hereinafter "Licensor Representative" or "Railroad Representative"): B. Licensee, at its own expense, shall adequately police and supervise all work to be performed. The responsibility of Licensee for safe conduct and adequate policing and supervision of work shall not be lessened or otherwise affected by Licensor's approval of plans and specifications involving the work, or by Licensor's collaboration in performance of any work, or by the presence at the work site of a Licensor Representative, or by compliance by Licensee with any requests or recommendations made by the Licensor Representative. C. At the request of Licensor, Licensee shall remove from Licensor's property any employee who fails to conform to the instructions of the Licensor Representative in connection with the work on Licensor's property. Licensee shall indemnify Licensor against any claims arising from the removal of any such employee from Licensor's property. D. Licensee shall notify the Licensor Representative at least ten (10) working days in advance of proposed performance of any work in which any per son or equipment will be within twenty-five (25) feet of any track, or will be near enough to any track that any equipment extension (such as, but not limited to, a crane boom) will reach to within twenty-five (25) feet of any track. No work JUSTIN D. ROGERS MGR TRACK MNTCE 33 BRIDGEHEAD RD MARTINEZ, CA 94553 Work # 402-233-1746 Cell # 402-676-9562 Email: jdrogers@up.com ROBERT MENDOZA MGR SIGNAL MNTCE 1851 B, 5th Street Oakland, CA 94607 Work phone: 916-789-6023 Cell phone: 530-632-9620 Email: rmendoz1@up.com of any kind shall be performed, and no person, equipment, machinery, tool(s), material(s), vehicle(s), or thing(s) shall be located, operated, placed, or stored within twenty-five (25) feet of any of Licensor's track(s) at any time, for any reason, unless and until a r ailroad flagman is provided to watch for trains. Upon receipt of such ten (10) day notice, the Licensor Representative will determine and inform Licensee whether a flagman need be present and whether any special protective or safety measures need to be implemented. If flagging or other special protective or safety measures are performed by Licensor, Licensor will bill Licensee for such expenses incurred by Licensor, unless Licensor and a federal, state or local governmental entity have agreed that Licensor is to bill such expenses to the federal, state or local governmental entity. If Licensor will be sending the bills to Licensee, Licensee shall pay such bills within thirty (30) days of receipt of billing. If Licensor performs any flagging, or other spe cial protective or safety measures are performed by Licensor, Licensee agrees that Licensee is not relieved of any of responsibilities or liabilities set forth in this Agreement. E. The rate of pay per hour for each flagman will be the prevailing hourly r ate in effect for an eight- hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Licensor and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Licensee (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges. F. Reimbursement to Licensor will be required covering the full eight-hour day during which any flagman is furnished, unless the flagman can be assigned to other railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagman is engaged in other railroad work. Reimbursement will also be required for any day not actually worked by the flagman following the flagman's assignment to work on the project for which Licensor is required to pay the flagman and which could not reasonably be avoided by Licensor by assignment of such flagman to other work, even though Licensee may not be working during such time. When it becomes necessary for Licensor to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Licensee must provide Licensor a minimum of five (5) days notice prior to the cessation of the need for a flagman. If five (5) days notice of cessation is not given, Licensee will still be required to pay flagging charges for the five (5) day notice period required by union agreement to be given to the employee, even though flagging is not required for that period. An additional ten (10) days notice must then be given to Licensor if flagging services are needed again after such five day cessation notice has been given to Licensor. G. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of the work performed by Licensee or its contractor. Licensee shall be responsible for initiating, maintaining and supervising all safety, operations and programs in connection with the work. Licensee and its contractor shall at a minimum comply with Licensor's safety standards listed in Exhibit D, hereto attached, to ensure uniformity with the safety standards followed by Licensor's own forces. As a part of Licensee's safety responsibilities, Licensee shall notify Licensor if it determines that any of Licensor's safety standards are contrary to good safety practices. Licensee and its contractor shall furnish copies of Exhibit D to each of its employees before they enter the job site. H. Without limitation of the provisions of paragraph G above, Licensee shall keep the job site free from safety and health hazards and ensure that their employees are competent and adequate ly trained in all safety and health aspects of the job. I. Licensee shall have proper first aid supplies available on the job site so that prompt first aid services may be provided to any person injured on the job site. Prompt notification shall be given to Licensor of any U.S. Occupational Safety and Health Administration reportable injuries. Licensee shall have a non-delegable duty to control its employees while they are on the job site or any other property of Licensor, and to be certain they do not use, be under the influence of, or have in their possession any alcoholic beverage, drug or other substance that may inhibit the safe performance of any work. J. If and when requested by Licensor, Licensee shall deliver to Licensor a copy of its safety plan f or conducting the work (the "Safety Plan"). Licensor shall have the right, but not the obligation, to require Licensee to correct any deficiencies in the Safety Plan. The terms of this Agreement shall control if there are any inconsistencies between this Agreement and the Safety Plan. Section 4. LICENSEE TO BEAR ENTIRE EXPENSE. The Licensee shall bear the entire cost and expense incurred in connection with the design, construction, maintenance, repair and renewal and any and all modification, revision, relocation, removal or reconstruction of the Pipeline, including any and all expense which may be incurred by the Licensor in connection therewith for supervision, inspection, flagging, or otherwise. Section 5. REINFORCEMENT, RELOCATION OR REMOVAL OF PIPELINE. A. The license herein granted is subject to the needs and requirements of the Licensor in the safe and efficient operation of its railroad and in the improvement and use of its property. The Licensee shall, at the sole expense of the Licensee, reinforce or otherwise modify the Pipeline, or move all or any portion of the Pipeline to such new location, or remove the Pipeline from the Licensor’s property, as the Licensor may designate, whenever, in the furtherance of its needs and requirements, the Licensor, at its sole election, finds such action necessary or desirable. B. All the terms, conditions and stipulations herein expressed with reference to the Pipeline on property of the Licensor in the location hereinbefore described shall, so far as the Pipeline remains on the property, apply to the Pipeline as modified, changed or relocated within the contemplation of this section. Section 6. NO INTERFERENCE WITH LICENSOR'S OPERATION. A. The Pipeline and all parts thereof within and outside of the limits of the property of the Licensor shall be designed, constructed and, at all times, maintained, repaired, renewed and operated in such manner as to cause no interference whatsoever with the constant, continuous and uninterrupted use of the tracks, property and facilities of the Licensor and nothing shall be done or suffered to be done by the Licensee at any time that would in any manner impair the safety thereof. B. Explosives or other highly flammable substances shall not be stored on Licensor's property without the prior written approval of Licensor. C. No additional vehicular crossings (including temporary haul roads) or pedestrian crossings over Licensor's trackage shall be installed or used by Licensee or its contractors without the prior written permission of Licensor. D. When not in use, any machinery and materials of Licensee or its contractors shall be kept at least fifty (50) feet from the centerline of Licensor's nearest track. E. Operations of Licensor and work performed by Licensor's personnel may c ause delays in the work to be performed by Licensee. Licensee accepts this risk and agrees that Licensor shall have no liability to Licensee or any other person or entity for any such delays. Licensee shall coordinate its activities with those of Licensor and third parties so as to avoid interference with railroad operations. The safe operation of Licensor's train movements and other activities by Licensor take precedence over any work to be performed by Licensee. Section 7. PROTECTION OF FIBER OPTIC CABLE SYSTEMS. A. Fiber optic cable systems may be buried on the Licensor's property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. Licensee shall telephone the Licensor during normal business hours (7:00 a.m. to 9:00 p.m. Central Time, Monday through Friday, except for holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls) to determine if fiber optic cable is buried anywhere on the Licensor's premises to be used by the Licensee. If it is, Licensee will telephone the telecommunications company(ies) involved, arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee’s expense, and will commence no work on the Licensor’s property until all such protection or relocation has been accomplished. Licensee shall indemnify and hold the Licensor harmless from and against all costs, liability and expense whatsoever (including, without limitation, attorneys' fees, court costs and expenses) arising out of or caused in any way by Licensee's failure to comply with the provisions of this paragraph. B. IN ADDITION TO OTHER INDEMNITY PROVISIONS IN THIS AGREEMENT, THE LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD THE LICENSOR HARMLESS FROM AND AGAINST ALL COSTS, LIABILITY AND EXPENSE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, COURT COSTS AND EXPENSES) CAUSED BY THE NEGLIGENCE OF THE LICENSEE, ITS CONTRACTORS, AGENTS AND/OR EMPLOYEES, RESULTING IN (1) ANY DAMAGE TO OR DESTRUCTION OF ANY TELECOMMUNICATIONS SYSTEM ON LICENSOR'S PROPERTY, AND/OR (2) ANY INJURY TO OR DEATH OF ANY PERSON EMPLOYED BY OR ON BEH ALF OF ANY TELECOMMUNICATIONS COMPANY, AND/OR ITS CONTRACTOR, AGENTS AND/OR EMPLOYEES, ON LICENSOR'S PROPERTY, EXCEPT IF SUCH COSTS, LIABILITY OR EXPENSES ARE CAUSED SOLELY BY THE DIRECT ACTIVE NEGLIGENCE OF THE LICENSOR. LICENSEE FURTHER AGREES THAT IT SHALL NOT HAVE OR SEEK RECOURSE AGAINST LICENSOR FOR ANY CLAIM OR CAUSE OF ACTION FOR ALLEGED LOSS OF PROFITS OR REVENUE OR LOSS OF SERVICE OR OTHER CONSEQUENTIAL DAMAGE TO A TELECOMMUNICATION COMPANY USING LICENSOR'S PROPERTY OR A CUSTOMER OR USER OF SERVICES OF THE FIBER OPTIC CABLE ON LICENSOR'S PROPERTY. Section 8. CLAIMS AND LIENS FOR LABOR AND MATERIAL; TAXES. A. The Licensee shall fully pay for all materials joined or affixed to and labor performed upon property of the Licensor in connection with the construction, maintenance, repair, renewal, modification or reconstruction of the Pipeline, and shall not permit or suffer any mechanic's or materialman's lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of the Licensee. The Licensee shall indemnify and hold harmless the Licensor against and from any and all liens, claims, demands, costs and expenses of whatsoever nature in any way connected with or growing out of such work done, labor performed, or materials furnished. B. The Licensee shall promptly pay or discharge all taxes, charges and assessments levied upon, in respect to, or on account of the Pipeline, to prevent the same from becoming a charge or l ien upon property of the Licensor, and so that the taxes, charges and assessments levied upon or in respect to such property shall not be increased because of the location, construction or maintenance of the Pipeline or any improvement, appliance or fixture connected therewith placed upon such property, or on account of the Licensee's interest therein. Where such tax, charge or assessment may not be separately made or assessed to the Licensee but shall be included in the assessment of the property of the Licensor, then the Licensee shall pay to the Licensor an equitable proportion of such taxes determined by the value of the Licensee's property upon property of the Licensor as compared with the entire value of such property. Section 9. RESTORATION OF LICENSOR'S PROPERTY. In the event the Licensee in any manner moves or disturbs any of the property of the Licensor in connection with the construction, maintenance, repair, renewal, modification, reconstruction, relocation or removal of the Pipeline, then in that event the Licensee shall, as soon as possible and at Licensee's sole expense, restore such property to the same condition as the same were before such property was moved or disturbed, and the Licensee shall indemnify and hold harmless the Licensor, its officers, agents and employees, against and from any and all liability, loss, damages, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from injury to or death of persons whomsoever, or damage to or loss or destruction of property whatsoever, when such injury, death, damage, loss or destruction grows out of or arises from the moving or disturbance of any other property of the Licensor. Section 10. INDEMNITY. A. As used in this Section, "Licensor" includes other railroad companies using the Licensor's property at or near the location of the Licensee's installation and their officers, agents, and employees; "Loss" includes loss, damage, claims, demands, actions, causes of action, penalties, costs, and expenses of whatsoever nature, including court costs and attorneys' fees, which may result from: (a) injury to or death of persons whomsoever (including the Licensor's officers, agents, and employees, the Licensee's officers, agents, and employees, as well as any other person); and/or (b) damage to or loss or destruction of property whatsoever (including Licensee's property, damage to the roadbed, tracks, equipment, or other property of the Licensor, or property in its care or custody). B. AS A MAJOR INDUCEMENT AND IN CONSIDERATION OF THE LICENSE AND PERMISSION HEREIN GRANTED, TO THE FULLEST EXTENT PERMITTED BY LAW, THE LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE LICENSOR FROM ANY LOSS OF ANY KIND, NATURE OR DESCRIPTION ARISING OUT OF, RESULTING FROM OR RELATED TO: 1. THE PROSECUTION OF ANY WORK CONTEMPLATED BY THIS AGREEMENT INCLUDING THE INSTALLATION, CONSTRUCTION, MAINTENANCE, REPAIR, RENEWAL, MODIFICATION, RECONSTRUCTION, RELOCATION, OR REMOVAL OF THE PIPELINE OR ANY PART THEREOF; 2. ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE; 3. THE PRESENCE, OPERATION, OR USE OF THE PIPELINE OR CONTENTS ESCAPING THEREFROM; 4. THE ENVIRONMENTAL STATUS OF THE PROPERTY CAUSED BY OR CONTRIBUTED TO BY LICENSEE; 5. ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL OVER; OR 6. LICENSEE’S BREACH OF THIS AGREEMENT, EXCEPT TO THE EXTENT THE LOSS IS CAUSED EITHER BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF LICENSOR, AS DETERMINED BY A FINAL JUDGMENT OF A COURT OR ARBITRATOR OF COMPETENT JURISDICTION. C. Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit of proceeding brought against any indemnitee by any entity, relating to any matter covered by this License for which Licensee has an obligation to assume liability for and/or save and hold harmless any indemnitee. Licensee shall pay all costs incident to such defense, including, but not limited to, reasonable attorney’s fees, investigators’ fees, litigation and appeal expenses, settlement payments and amounts paid in satisfaction of judgments. Section 11. REMOVAL OF PIPELINE UPON TERMINATION OF AGREEMENT. Prior to the termination of this Agreement howsoever, the Licensee shall, at Licensee's sole expense, remove the Pipeline from those portions of the property not occupied by the roadbed and track or tracks of the Licensor and shall restore, to the satisfaction of the Licensor, such portions of such property to as good a condition as they were in at the time of the construction of the Pipeline. If the Licensee fails to do the foregoing, the Licensor may, but is not obligated, to perform such work of removal and restoration at the cost and expense of the Licensee. In the event of the removal by the Licensor of the property of the Licensee and of the restoration of the roadbed and property as herein provided, the Licensor shall in no manner be liable to the Licensee for any damage sustained by the Licensee for or on account thereof, and such removal and restoration shall in no manner prejudice or impair any right of action for damages, or otherwise, that the Licensor may have against the Licensee. Section 12. WAIVER OF BREACH. The waiver by the Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by the Licensee shall in no way impair the right of the Licensor to avail itself of any remedy for any subsequent breach thereof. Section 13. TERMINATION. Grantor may terminate this Agreement by delivering written notice of termination to Grantee, which notice shall be effective upon delivery, upon Grantee's (i) breach of the terms contained herein and failure to cure such breach within forty-five (45) days after receipt of notice from Grantor describing the alleged breach ("Cure Period"), or (ii) in the case of a breach that cannot reasonably be cured within the Cure Period, Grantee fails to commence to cure such breach within the Cure Period and to continuously thereafter undertake commercially reasonable efforts to effect such cure. Section 14. AGREEMENT NOT TO BE ASSIGNED. The Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of the Licensor, and it is agreed that any transfer or assignment or attempted transfer or assignment of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without such consent in writing, shall be absolutely void and, at the option of the Licensor, shall terminate this Agreement. Section 15. SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 14 hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, executors, administrators, successors and assigns. Section 16. SEVERABILITY. Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not invalidate or otherwise render ineffective any other provision of this Agreement. Approved: Insurance Group Created: 9/23/05 Last Modified: 03/29/10 Form Approved, AVP-Law EXHIBIT C Union Pacific Railroad Company Contract Insurance Requirements Licensee shall, at its sole cost and expense, procure and maintain during the life of this Agreement (except as otherwise provided in this Agreement) the following insurance coverage: A. Commercial General Liability insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000. CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). The policy must also contain the following endorsement, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE: “Contractual Liability Railroads” ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing “Union Pacific Railroad Company Property” as the Designated Job Site. B. Business Automobile Coverage insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each accident, and coverage must include liability arising out of any auto (including owned, hired, and non-owned autos). The policy must contain the following endorsements, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE: “Coverage For Certain Operations In Connection With Railroads” ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing “Union Pacific Property” as the Designated Job Site. C. Workers Compensation and Employers Liability insurance. Coverage must include but not be limited to: Licensee’s statutory liability under the workers' compensation laws of the state(s) affected by this Agreement. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee. If Licensee is self-insured, evidence of state approval and excess workers compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable. D. Railroad Protective Liability insurance. Licensee must maintain “Railroad Protective Liability” insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Railroad only as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of “JOB LOCATION” and “WORK” on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this agreement E. Umbrella or Excess insurance. If Licensee utilizes umbrella or excess policies, and these policies must “follow form” and afford no less coverage than the primary policy. Other Requirements F. All policy(ies) required above (except worker’s compensation and employers liability) must include Railroad as “Additional Insured” using ISO Additional Insured Endorsements CG 20 26, and CA 20 48 (or substitute forms providing equivalent coverage). The coverage provided to Railroad as additional insured shall, to the extent provided under ISO Additional Insured Endorsement CG 20 26, and CA 20 48 provide coverage for Railroad’s negligence whether sole or partial, active or passive, and shall not be limited by Licensee’s liability under the indemnity provisions of this Agreement. G. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this agreement, or (b) all punitive damages are prohibited by all states in which this agreement will be performed. H. Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Railroad and its agents, officers, directors and employees for damages covered by the workers compensation and employers liability or commercial umbrella or excess liability obtained by Licensee required in this agreement, where permitted by law This waiver must be stated on the certificate of insurance. I. All insurance policies must be written by a reputable insurance company acceptable to Railroad or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed. J. The fact that insurance is obtained by Licensee or by Railroad on behalf of Licensee will not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Railroad from Licensee or any third party will not be limited by the amount of the required insurance coverage. Pipeline Crossing 07/20/08 Form Approved, AVP-Law EXHIBIT D SAFETY STANDARDS MINIMUM SAFETY REQUIREMENTS The term "employees" as used herein refer to all employees of Licensee or its contractors, subcontractors, or agents, as well as any subcontractor or agent of any Licensee. I. Clothing A. All employees of Licensee will be suitably dressed to perform their duties safely and in a manner that will not interfere with their vision, hearing, or free use of their hands or feet. Specifically, Licensee’s employees must wear: (i) Waist-length shirts with sleeves. (ii) Trousers that cover the entire leg. If flare-legged trousers are worn, the trouser bottoms must be tied to prevent catching. (iii) Footwear that covers their ankles and has a defined heel. Employees working on bridges are required to wear safety-toed footwear that conforms to the American National Standards Institute (ANSI) and FRA footwear requirements. B. Employees shall not wear boots (other than work boots), sandals, canvas-type shoes, or other shoes that have thin soles or heels that are higher than normal. C. Employees must not wear loose or ragged clothing, neckties, finger rings, or other loose jewelry while operating or working on machinery. II. Personal Protective Equipment Licensee shall require its employee to wear personal protective equipment as specified by Railroad rules, regulations, or recommended or requested by the Railroad Representative. (i) Hard hat that meets the American National Standard (ANSI) Z89.1 – latest revision. Hard hats should be affixed with Licensee’s company logo or name. (ii) Eye protection that meets American National Standard (ANSI) for occupational and educational eye and face protection, Z87.1 – latest revision. Additional eye protection must be provided to meet specific job situations such as welding, grinding, etc. (iii) Hearing protection, which affords enough attenuation to give protection from noise levels that will be occurring on the job site. Hearing protection, in the form of plugs or muffs, must be worn when employees are within:  100 feet of a locomotive or roadway/work equipment  15 feet of power operated tools  150 feet of jet blowers or pile drivers  150 feet of retarders in use (when within 10 feet, employees must wear dual ear protection – plugs and muffs) (iv) Other types of personal protective equipment, such as respirators, fall protection equipment, and face shields, must be worn as recommended or requested by the Railroad Representative. III. On Track Safety Licensee and its contractor are responsible for compliance with the Federal Railroad Administration’s Roadway Worker Protection regulations – 49CFR214, Subpart C and Railroad's On-Track Safety rules. Under 49CFR214, Subpart C, railroad contractors are responsible for the training of their employees on such regulations. In addition to the instructions contained in Roadway Worker Protection regulations, all employees must: (i) Maintain a minimum distance of at least twenty-five (25) feet to any track unless the Railroad Representative is present to authorize movements. (ii) Wear an orange, reflectorized work wear approved by the Railroad Representative. (iii) Participate in a job briefing that will specify the type of On-Track Safety for the type of work being performed. Licensee must take special note of limits of track authority, which tracks may or may not be fouled, and clearing the track. Licensee will also receive special instructions relating to the work zone around machines and minimum distances between machines while working or traveling. IV. Equipment A. It is the responsibility of Licensee to ensure that all equipment is in a safe condition to operate. If, in the opinion of the Railroad Representative, any of Licensee’s equipment is unsafe for use, Licensee shall remove such equipment from Railroad’s property. In addition, Licensee must ensure that the operators of all equipment are properly trained and competent in the safe operation of the equipment. In addition, operators must be:  Familiar and comply with Railroad’s rules on lockout/tagout of equipment.  Trained in and comply with the applicable operating rules if operating any hy-rail equipment on-track.  Trained in and comply with the applicable air brake rules if operating any equipment that moves rail cars or any other rail bound equipment. B. All self-propelled equipment must be equipped with a first-aid kit, fire extinguisher, and audible back-up warning device. C. Unless otherwise authorized by the Railroad Representative, all equipment must be parked a minimum of twenty-five (25) feet from any track. Before leaving any equipment unattended, the operator must stop the engine and properly secure the equipment against movement. D. Cranes must be equipped with three orange cones that will be used to mark the working area of the crane and the minimum clearances to overhead powerlines. V. General Safety Requirements A. Licensee shall ensure that all waste is properly disposed of in accordance with applicable federal and state regulations. B. Licensee shall ensure that all employees participate in and comply with a job briefing conducted by the Railroad Representative, if applicable. During this briefing, the Railroad Representative will specify safe work procedures, (including On -Track Safety) and the potential hazards of the job. If any employee has any questions or concerns about the work, the employee must voice them during the job briefing. Additional job briefings will be conducted during the work as conditions, work procedures, or personnel change. C. All track work performed by Licensee meets the minimum safety requirements established by the Federal Railroad Administration’s Track Safety Standards 49CFR213. D. All employees comply with the following safety procedures when working around any railroad track: (i) Always be on the alert for moving equipment. Employees must always expect movement on any track, at any time, in either direction. (ii) Do not step or walk on the top of the rail, frog, switches, guard rails, or other track components. (iii) In passing around the ends of standing cars, engines, roadway machines or work equipment, leave at least 20 feet between yourself and the end of the equipment. Do not go between pieces of equipment of the opening is less than one car length (50 feet). (iv) Avoid walking or standing on a track unless so authorized by the employee in charge. (v) Before stepping over or crossing tracks, look in both directions first. (vi) Do not sit on, lie under, or cross between cars except as required in the performance of your duties and only when track and equipment have been protected against movement. E. All employees must comply with all federal and state regulations concerning workplace safety. RECOMMENDATION(S): APPROVE the 2016 Slurry Seal project contingency fund increase of $5,000 for a new contingency fund total of $88,684.50, and a new payment limit of $925,529.50, effective December 6, 2016, as recommended by the Public Works Director, and APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Contract Change Order No. 2 with Pavement Coatings, Co., effective December 6, 2016, in an amount not to exceed $72,378.47. Project No. 0672-6U2153-16 [District II & IV) FISCAL IMPACT: Project is being funded by 100% Local Road Funds. BACKGROUND: Contract Change Order No. 2 is necessary to pay the contractor, Pavement Coatings, Co., for additional cost incurred as the result of adding Livorna Road, Northgate Road APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kevin Emigh, (925) 313-2233 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 3 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Approve the contingency fund increase and Contract Change Order No. 2 for the 2016 Slurry Seal Project, Alamo, Clayton, and Walnut Creek areas. BACKGROUND: (CONT'D) and Caballo Ranchero Drive to the project’s scope at the request of our Maintenance Division. The contingency fund increase is necessary to compensate the contractor for unforeseen extra work completed during the project. CONSEQUENCE OF NEGATIVE ACTION: The lack of approval would prevent successful completion of this contract and prevent payment for the additional work performed by the contractor. RECOMMENDATION(S): ADOPT Resolution No. 2016/662 accepting as complete, the contracted work performed by Bay Cities Paving & Grading, Inc., for the Canal Road Sidewalk and Bike Lane Project, as recommended by the Public Works Director, Bay Point area. Project No. 0662-6R4062, Federal Project No. SR2SL 5928 (116) (District V) FISCAL IMPACT: Project was funded by 35% Congestion Mitigation and Air Quality Lifeline Transportation Grant Funds, 16% Safe Routes to School Funds and 49% Local Gas Tax Funds. BACKGROUND: The Public Works Director reports that said work has been inspected and complies with the approved plans, special provisions and standard specifications and recommends its acceptance as complete as of October 12, 2016. CONSEQUENCE OF NEGATIVE ACTION: The contractor will not be paid and acceptance notification will not be recorded. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kevin Emigh, (925) 313-2233 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 4 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Notice of Completion of Contract for the Canal Road Sidewalk and Bike Lane Project, Bay Point area. ATTACHMENTS Resolution No. 2016/662 Recorded at the request of:Clerk of the Board Return To:Design/Construction Division THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/662 In the Matter of Accepting and Giving Notice of Completion of Contract for the Canal Road Sidewalk and Bike Lane Project, Bay Point area. Project No. 0662-6R4062, Federal Project No. SR2SL 5928 (116) (District V) WHEREAS the Board of Supervisors RESOLVES that on May 24, 2016, the County contracted with Bay Cities Paving & Grading Inc. for the work generally consisting of roadway widening, sidewalk, curb and gutter installation and drainage improvements in the Bay Point area, with Travelers Casualty & Surety Company of America as surety, for work performed on the grounds of the County; and The Public Works Director reports that said work has been inspected and complies with the approved plans, special provisions and standard specifications and recommends its acceptance as complete as of October 12, 2016. NOW THEREFORE, BE IT RESOLVED said work is ACCEPTED as complete on said date, and the Clerk shall file with the County Recorder a copy of this resolution and Notice as a Notice of Completion for said contract. Contact: Kevin Emigh, (925) 313-2233 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute a Utility Relocation Agreement with Contra Costa Water District, (District), for the Marsh Creek Road Bridge (#28C141) Replacement Project (Project), Clayton area. County Project No. 0662-6R4079/Federal Project No. BRLS 5928(107) [District III] FISCAL IMPACT: The estimated cost for the work associated with this agreement is $322,000.00. All costs associated with this work will be paid for by the District. BACKGROUND: The Project proposes to replace the bridge on Marsh Creek Road (Bridge No. 28C141) in the unincorporated area of Contra Costa County. The District owns and maintains water lines within the limits of the Project. In order to construct the Project, existing District facilities need to be relocated. This requires both a temporary and permanent relocation of existing water lines within Contra Costa County’s road right of way. The purpose of this agreement is to provide for the apportionment of duties and costs between Contra Costa County and the District. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kevin Emigh, (925) 313-2233 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 5 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Utility Relocation Agreement for Marsh Creek Road Bridge (#28C141) Replacement Project, Clayton area. CONSEQUENCE OF NEGATIVE ACTION: If the agreement is not approved, construction of the Project will be halted, as the bridge cannot be replaced as proposed without relocation of the District’s facilities and the Federal Funds will be lost. RECOMMENDATION(S): (1) APPROVE the specifications for the 2017 On-Call Contract(s) for Various Road, Flood Control, and Airport Maintenance Work, Countywide. Project No. 0672-6U2009-17 (All Districts) (2) DETERMINE that GradeTech, Inc. (GradeTech), the lowest monetary bidder, has complied with the requirements of the County’s Outreach Program for this project, as provided in the project specifications; and the Board WAIVES any irregularities in such compliance; and FURTHER DETERMINE that GradeTech has submitted the lowest responsive and responsible bid for the contract and has complied with the Mandatory Subcontracting Minimum for the project. (3) DETERMINE that Hess Concrete Construction Co., Inc. (Hess), the second lowest monetary bidder, has complied with the requirements of the County’s Outreach Program for this project, as provided in the project specifications; and the Board WAIVES any irregularities in such compliance, and FURTHER DETERMINE that Hess has submitted the second lowest responsive and responsible bid for the contract and has complied with the Mandatory Subcontracting Minimum for the project. (4) DETERMINE that Engineered Soil Repairs, Inc. (ESR), the third lowest monetary bidder, has complied with the requirements of the County’s APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Allison Knapp, (925) 313-7008 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 6 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Construction Contracts for the 2017 On-Call Contract(s) for Various Road, Flood Control, and Airport Maintenance Work, Countywide. RECOMMENDATION(S): (CONT'D) Outreach Program for this project, as provided in the project specifications; and the Board WAIVES any irregularities in such compliance, and FURTHER DETERMINE that ESR has submitted the third lowest responsive and responsible bid for the contract and has complied with the Mandatory Subcontracting Minimum for the project. (5) AWARD on-call contracts to the following three contractors in the following priority for Job Orders, as provided in the project specifications: (A) GradeTech, in a not to exceed amount ($500,000.00) and the unit prices submitted in the bid ($1,193.00 Total Unit Price). (B) Hess, in a not to exceed amount ($500,000.00) and the unit prices submitted in the bid ($1,484.00 Total Unit Price). (C) ESR, in a not to exceed amount ($300,000.00) and the unit prices submitted in the bid ($1,614.25 Total Unit Price). (6) DIRECT that the Public Works Director, or designee, shall prepare the contracts. (7) ORDER that after the contractors have signed the contracts and returned them, together with any required certificates of insurance and other required documents, and the Public Works Director has reviewed and found them to be sufficient; the Public Works Director, or designee, is authorized to sign the contracts for this Board. (8) ORDER that, the Public Works Director, or designee, is authorized to sign any escrow agreements prepared for this project to permit the direct payment of retentions into escrow or the substitution of securities for moneys withheld by the County to ensure performance under the contract, pursuant to Public Contracts Code Section 22300. (9) DELEGATE, pursuant to Public Contract Code Section 4114, to the Public Works Director, or designee, the Board’s functions under Public Contract Code Sections 4107 and 4110. (10) DECLARE that, should the award of the contract to GradeTech, Hess, or ESR be invalidated for any reason, the Board would not in any event have awarded the contracts to any other bidders, but instead would have exercised its discretion to reject all of the bids received. Nothing in this Board Order shall prevent the Board from re-awarding the contract to another bidder in cases where the successful bidder establishes a mistake, refuses to sign the contract, or fails to furnish required bonds or insurance (see Public Contract Code Sections 5100-5107). FISCAL IMPACT: All three contracts will be funded by 100% Local Road Funds. BACKGROUND: The above project was previously approved by the Board of Supervisors, specifications were filed with and approved by the Board, and bids were invited by the Public Works Director. On November 1, 2016, the Public Works Department received bids from the following contractors: BIDDER, TOTAL UNIT AMOUNT GradeTech, Inc.: $1,193.00 Total Unit Price Hess Concrete Construction Co., Inc.: $1,484.00 Total Unit Price Engineered Soil Repairs, Inc.: $1,614.25 Total Unit Price GradeTech submitted the lowest responsive and responsible bid, which is $291.00 (Total Unit Price) less than the next lowest bid. Hess submitted the second lowest responsive and responsible bid, which is $130.25 (Total Unit Price) less than the next lowest bid. ESR submitted the third lowest responsive and responsible bid. The Public Works Director has reported that the bids submitted by GradeTech, Hess, and ESR document an adequate good faith effort to comply with the requirements of the County’s Outreach Program, as provided in the project specifications, and the Public Works Director recommends that the contracts be awarded to GradeTech, Hess, and ESR in that order. The Public Works Director recommends that the bids submitted by GradeTech, Hess, and ESR are the lowest responsive and responsible bids and this Board so concurs and finds. As provided in the project specifications, the three on-call contracts would be awarded in the following priority for Job Orders: (1) GradeTech; (2) Hess, and (3) ESR. The general prevailing rates of wages, which shall be the minimum rates paid on this project, have been filed with the Clerk of the Board, with copies to be made available to any party upon request. CONSEQUENCE OF NEGATIVE ACTION: The Public Works Department may be unable to complete routine road, flood control, and airport maintenance work in a timely manner. RECOMMENDATION(S): ADOPT Resolution No. 2016/602 approving the Stormwater Management Facilities Operation and Maintenance Agreement for minor subdivision MS14-00006, for a project being developed by MMA Homes 2013, LLC, as recommended by the Public Works Director, Walnut Creek area. (District IV) FISCAL IMPACT: No fiscal impact. BACKGROUND: The Stormwater Management Facilities Operation and Maintenance Agreement is required by Condition of Approval No 46. CONSEQUENCE OF NEGATIVE ACTION: The agreement will not be recorded and the Contra Costa Country may not be in full compliance with its National Pollutant Discharge Elimination System (NPDES) permit and Stormwater Management Discharge Control Ordinance. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jocelyn LaRocque (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Caroline Tom, Engineering Services, Jocelyn LaRocque, Engineering Services, Sean Tully, Department of Conservation and Development, Cece Sellgren, Flood Control District C. 7 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE the Stormwater Management Facilities Operation and Maintenance Agreement for minor subdivision MS14-00006, Walnut Creek area. ATTACHMENTS Resolution No. 2016/602 Stormwater Management Facilities O&M Agreement Recorded at the request of:Jocelyn LaRocque Return To:Naila Thrower THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/602 IN THE MATTER OF approving the Stormwater Management Facilities Operation and Maintenance Agreement for minor subdivision MS14-00006 (APN 180-131-001), Walnut Creek area. (District IV) WHEREAS the Public Works Director has recommended that she be authorized to execute the Stormwater Management Facilities Operation and Agreement with MMA Homes 2013, LLC, as required by the Conditions of Approval for minor subdivision MS14-00006. This agreement would ensure the operation and maintenance of the stormwater facilities in accordance with the approved Stormwater Control Plan and approved Operation and Maintenance Plan for minor subdivision MS14-00006, which is located at 1202 Mountain View Boulevard in the Walnut Creek area. NOW, THEREFORE, BE IT RESOLVED that the recommendation of the Public Works Director is APPROVED. Contact: Jocelyn LaRocque (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Caroline Tom, Engineering Services, Jocelyn LaRocque, Engineering Services, Sean Tully, Department of Conservation and Development, Cece Sellgren, Flood Control District RECOMMENDATION(S): APPROVE the Fiscal Year (FY) 2016/17 Dougherty Valley Maintenance County Service Area M-29 budget totaling $21,881,281, as summarized in Exhibit 1, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (District II) FISCAL IMPACT: 100% County Service Area M-29 Funds. BACKGROUND: Doughtery Valley is an 11,000-unit development that was approved by, and is being processed through Contra Costa County and is annexed into the City of San Ramon as Final Maps are approved and improvements are accepted as complete. Dougherty Valley began construction in 1996 and currently 85% of the homes have been annexed into San Ramon. A 1994 Settlement Agreement that allowed for the development of Dougherty Valley also laid out a plan to provide for the long-term operation and maintenance of the increased municipal services provided in Dougherty Valley. These increased services included Police Protection, Parks Maintenance, Landscape Maintenance, Street Lighting, increased Library Services, and the operation and maintenance of 3 Community Facilities Buildings (Community Center, Senior Center, APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jocelyn LaRocque, (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 8 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE the Fiscal Year 2016/17 Annual Budget for Dougherty Valley Maintenance for County Service Area M-29, San Ramon (Dougherty Valley) area. BACKGROUND: (CONT'D) and Service Center). In a 1997 Memorandum of Understanding between Contra Costa County and the City of San Ramon, it was decided that these increased services would be provided by the City of San Ramon, and reimbursed through property tax and special assessment revenue of CSA M-29. CSA M-29 was created in 1998 to collect property tax and special assessment revenue. However, the Dougherty Valley Maintenance Budget includes all revenue from CSA M-29 in addition to sales tax, real property transfer tax and contributions from the City of San Ramon General Fund. At the end of the fiscal year funds are to be reimbursed to the City of San Ramon for various municipal services provided within the Dougherty Valley area. On December 20, 2005, the Board of Supervisors approved a Reimbursement Agreement between the County, the City of San Ramon, Shapell Industries and Windemere BLC land Company to provide reimbursement to the City of San Ramon for providing services within the boundaries of Dougherty Valley. The Reimbursement Agreement outlined the annual process for the City of San Ramon to receive reimbursement of funds for services rendered in Doughery Valley. The process laid out in the agreement calls for the annual budget for Dougherty Valley Maintenance to be approved at the San Ramon City Council level and then subsequently approved at the County Board of Supervisors. On June 14, 2016, by Resolution 2016-044, the San Ramon City Council approved the FY 2016/17 citywide operating budget including line items for the Dougherty Valley Maintenance which totaled $21,881,281 in expenses. CONSEQUENCE OF NEGATIVE ACTION: The Dougherty Valley Maintenance budget will not be approved and the City of San Ramon will not receive reimbursement for city services performed in Dougherty Valley as agreed to under terms of the Reimbursement Agreement and the 1994 Settlement Agreement. ATTACHMENTS Exhibit 1 (BO - CSAM29_Final_FY16-17) EXHIBIT 1 Dougherty Valley Maintenance FY 2016-17 Annual Budget Actual Actual Actual Budget 2013-14 2014-15 2015-16 2016-17 REVENUE I.Direct Revenues (excluding CSA M-29 Tax/Assessment) a.CSA M-29 Advalorem Property Taxes $2,247,861 $2,548,215 $2,810,396 $3,324,649 b.Real Property Transfer Tax $265,254 $238,721 $345,448 $345,448 Subtotal $2,513,115 $2,786,936 $3,155,844 $3,670,097 II.Indirect Revenue (City of San Ramon Contribution) a.Sales Tax $1,322,830 $1,376,592 $1,446,191 $1,517,710 b.Fines and Forfeitures $73,493 $103,225 $114,367 $113,247 c.Licenses/Permits/Franchise Fees $330,631 $326,187 $350,969 $355,523 d.Motor Vehicle In-Lieu Fees $300,144 $372,343 $440,831 $506,943 Subtotal $2,027,098 $2,178,347 $2,352,358 $2,493,424 III.CSA M-29 Special Tax/Assessment Revenue $10,280,605 $10,719,924 $11,254,609 $12,081,231 IV.San Ramon General Fund Contribution to cover GAP $1,587,345 $1,459,687 $2,495,802 $3,636,530 TOTAL AVAILABLE REVENUE $16,408,163 $17,144,894 $19,258,612 $21,881,281 EXPENDITURES a.Internal Road Maintenance ($926,975)($954,397)($1,065,131)($1,060,123) b.Street Landscaping ($3,696,065)($3,663,138)($4,372,695)($5,384,675) c.Park Maintenance ($2,854,661)($2,932,240)($3,636,666)($4,110,835) d.Open Space Maintenance ($103,567)($97,472)($72,657)($151,841) e.Flood Control Services ($49,763)($66,170)($74,587)($106,079) f.Police Services ($6,033,744)($6,533,052)($6,863,354)($7,491,616) g.Community Facilities (no Library Operations)($1,117,354)($1,199,382)($1,265,012)($1,407,698) h.Overhead to City @ 11%($1,626,034)($1,699,044)($1,908,511)($2,168,415) TOTAL EXPENDITURES ($16,408,163)($17,144,894)($19,258,612)($21,881,281) RECOMMENDATION(S): ADOPT Resolution No. 2016/654 approving the second extension of the Subdivision Improvement Agreement (Right-of-Way Landscaping) for subdivision SD06-09134, for a project being developed by Shapell Homes, A Division of Shapell Industries, Inc., A Delaware Corporation, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (District II) FISCAL IMPACT: No fiscal impact. BACKGROUND: The terminal date of Subdivision Agreement (Right-of-Way Landscaping) needs to be extended. (Approximately 90% of the work has been completed to date.) By granting an extension, the County will give the developer more time to complete the improvements and keep the bond current. CONSEQUENCE OF NEGATIVE ACTION: The terminal date of the Subdivision Agreement (Right-of-Way Landscaping) will not be extended and the developer will be in default of the agreement, requiring the County to take legal action against the developer and surety to get the improvements installed. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jocelyn LaRocque, (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Jocelyn LaRocque, Engineering Services, Lori Leontini, Engineering Services, Sherri Reed, Design and Construction, Chris Low, Shapell Homes, LLC, The Continental Insurance Company C. 9 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE the second extension of the Subdivision Agreement (Right-of-Way Landscaping) for subdivision SD06-09134, San Ramon (Dougherty Valley) area. ATTACHMENTS Resolution No. 2016/654 Subdivision Agreement 2nd Extension SD06-09134 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/654 IN THE MATTER OF approving the second extension of the Subdivision Agreement (Right-of-Way Landscaping) for subdivision SD06-09134, for a project being developed by Shapell Homes, A Division of Shapell Industries, Inc., A Delaware Corporation, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (District II) WHEREAS the Public Works Director having recommended that she be authorized to execute the second agreement extension which extends the Subdivision Agreement (Right-of-Way Landscaping) between Shapell Homes, A Division of Shapell Industries, Inc., Delaware Corporation and the County for construction of certain improvements in subdivision SD06-09134, San Ramon (Dougerty Valley) area, through July 9, 2017. APPROXIMATE PERCENTAGE OF WORK: 90% ANTICIPATED DATE OF COMPLETION: December 2016 BOND NO.: 929 569 041 Date: March 15, 2013 REASON FOR EXTENSION: The developer needs more time to complete the improvements due to delays from house construction. NOW, THEREFORE, BE IT RESOLVED that the recommendation of the Public Works Director is APPROVED. Contact: Jocelyn LaRocque, (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Jocelyn LaRocque, Engineering Services, Lori Leontini, Engineering Services, Sherri Reed, Design and Construction, Chris Low, Shapell Homes, LLC, The Continental Insurance Company RECOMMENDATION(S): ADOPT Resolution No. 2016/655 ratifying the prior decision of the Public Works Director, or designee, to fully close a portion of Knightsen Avenue between Delta Road and Curlew Connex, and all of 2nd Street on November 26, 2016 from 2:00 p.m. through 7:00 p.m., for the purpose of the Christmas Tree Lighting and Parade, Knightsen area. (District III) FISCAL IMPACT: No fiscal impact. BACKGROUND: Applicant shall follow guidlines set forth by the Public Works Department. CONSEQUENCE OF NEGATIVE ACTION: Applicant will not have Board approval for completed road closure. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Bob Hendry, (925) 674-7744 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: CHP, Sheriff-Patrol Div. Commander C. 10 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Ratify prior decision to fully close a portion of Knightsen Ave., between Delta Rd. & Curlew Connex, & all of 2nd St. for Tree Lighting & Parade. ATTACHMENTS Resolution No. 2016/655 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/655 IN THE MATTER OF Ratifying the prior decision of the Public Works Director, or designee, to fully close a portion of Knightsen Avenue between Delta Road and Curlew Connex, and all of 2nd Street on November 26, 2016 from 2:00 p.m. through 7:00 p.m., for the purpose of the Christmas Tree Lighting and Parade, Knightsen area. (District III) RC16-14 IT IS BY THE BOARD RESOLVED that permission is granted to Knightsen Garden Club/Knightsen TAC to fully close Knightsen Avenue between Delta Road and Curlew Connex, and all of 2nd Street except for emergency traffic, on November 26, 2016 for the period of 2:00 p.m. through 7:00 p.m., subject to the following conditions: 1. Traffic will be detoured via neighboring streets per plan reviewed by Public Works. 2. All signing to be in accordance with the California Manual on Uniform Traffic Control Devices. 3. Knightsen Garden Club/Knightsen TAC shall comply with the requirements of the Ordinance Code of Contra Costa County. 4. Provide the County with a Certificate of Insurance in the amount of $1,000,000, for Comprehensive General Public Liability which names the County as an additional insured prior to permit issuance. 5. Obtain approval for the closure from the Sheriff's Department, the California Highway Patrol, and the Fire District. Contact: Bob Hendry, (925) 674-7744 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: CHP, Sheriff-Patrol Div. Commander RECOMMENDATION(S): ADOPT Resolution No. 2016/658 approving the second extension of the Subdivision Improvement Agreement (Right-of-Way Landscaping) for subdivision SD08-09245, for a project being developed by Shapell Homes, A Division of Shapell Industries, Inc., A Delaware Corporation, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (District II) FISCAL IMPACT: No fiscal impact. BACKGROUND: The terminal date of the Subdivision Agreement (Right-of-Way Landscaping) needs to be extended. (Approximately 100% of the work has been completed to date.) The development is in the warranty period and the bond needs to be kept up to date. CONSEQUENCE OF NEGATIVE ACTION: The terminal date of the Subdivision Agreement (Right-of-Way Landscaping) will not be extended. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jocelyn LaRocque, (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Jocelyn LaRocque, Engineering Services, Lori Leontini, Engineering Services, Sherri Reed, Design and Construction, Chris Low, Shapell Homes, LLC, The Continental Insurance Company C. 11 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE the second extension of the Subdivision Agreement (Right-of-Way Landscaping), San Ramon (Dougherty Valley) area. ATTACHMENTS Resolution No. 2016/658 Subdivision Agreement 2nd Extension SD08-09245 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/658 IN THE MATTER OF approving the second extension of the Subdivision Agreement (Right-of-Way Landscaping) for subdivision SD08-09245, for a project being developed by Shapell Homes, A Division of Shapell Industries, Inc., A Delaware Corporation, as recommended by the Public Works Director, San Ramon (Dougherty Valley) area. (District II) WHEREAS the Public Works Director having recommended that she be authorized to execute the second agreement extension which extends the Subdivision Agreement (Right-of-Way Landscaping) between Shapell Homes, A Shapell Industries, Inc., A Delaware Corporation and the County for construction of certain landscape improvements in subdivision SD08-09245, San Ramon (Dougherty Valley) area, through July 9, 2017. APPROXIMATE PERCENTAGE OF WORK COMPLETE: 100% ANTICIPATED DATE OF COMPLETION: Completed BOND NO.: 929 569 040 Date: April 14, 2013 REASON FOR EXTENSION: The development is in the warranty period and the bond needs to be kept up to date. NOW, THEREFORE, BE IT RESOLVED that the recommendation of the Public Works Director is APPROVED. Contact: Jocelyn LaRocque, (925) 313-2315 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Jocelyn LaRocque, Engineering Services, Lori Leontini, Engineering Services, Sherri Reed, Design and Construction, Chris Low, Shapell Homes, LLC, The Continental Insurance Company RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a month-to-month hangar rental agreement with David Minor for a T-hangar at Buchanan Field Airport effective November 15, 2016 in the monthly amount of $394.10, Pacheco area. FISCAL IMPACT: The Airport Enterprise Fund will realize $4,729.20 annually. BACKGROUND: On September 1, 1970, Buchanan Airport Hangar Company entered into a 30-year lease with Contra Costa County for the construction of seventy-five (75) hangars and eighteen (18) aircraft shelters at Buchanan Field Airport. Buchanan Airport Hangar Company was responsible APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Lee, (925) 681-4200 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 12 To:Board of Supervisors From:Keith Freitas, Airports Director Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a hangar rental agreement with Buchanan Field Airport Hangar tenant BACKGROUND: (CONT'D) for the maintenance and property management of the property during that 30-year period. On September 1, 2000, the County obtained ownership of the aircraft hangars and shelters, pursuant to the terms of the above lease. On February 13, 2007, Contra Costa County Board of Supervisors approved the new Large Hangar Lease Agreement for use with the larger East Ramp Hangars. On February 3, 2008, Contra Costa County Board of Supervisors approved the amended T-Hangar Lease Agreement which removed the Aircraft Physical Damage Insurance requirement. The new amended T-hangar Lease Agreement will be used to enter into this aircraft rental agreement. CONSEQUENCE OF NEGATIVE ACTION: A negative action will cause a loss of revenue to the Airport Enterprise Fund. ATTACHMENTS Hangar Agreement-David Minor RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Airports, or designee, to SELECT a Master Developer and NEGOTIATE long-term ground lease and development terms between the County, as Landlord, and one of the two parties, in priority ranking order, that has submitted a final development proposal of approximately 4.6 acres of land on the north side of the Buchanan Field Airport at Marsh Drive and Solano Way, Pacheco Area. FISCAL IMPACT: The Airport Enterprise Fund could realize lease and other revenues. The County General Fund could realize sales tax and other revenues if a lease is successfully negotiated. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Lee, (925) 681-4200 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 13 To:Board of Supervisors From:Keith Freitas, Airports Director Date:December 6, 2016 Contra Costa County Subject:Contra Costa Airports-Authorization to Negotiate Grnd Lease & Development Terms for Approx. 4.6 Acres of County-Owned Land at Buchanan Field Airport BACKGROUND: The development site is approximately 4.6 acres of land owned by the County and located on the northwest corner of Marsh Drive and Solano Way on the north side of Buchanan Field Airport. The parcel is designated for non-aviation use on the Buchanan Field Master Plan. On September 29, 2016, the Contra Costa County Public Works – Airports Division received a letter of interest from a private party to develop a commercial use on the approximate 4.6-acre parcel. In accordance with prior discussions with the Federal Aviation Administration’s (FAA) Airports District Office (ADO) regarding development at Buchanan Field, the County notified existing commercial tenants at Buchanan Field and Byron to solicit other competitive interest in the property. The development solicitation letter and publication provided a response deadline of November 7, 2016, for all competitive interests in the approximate 4.6-acre parcel to be submitted to the County Airport Office. The County received one additional letter of interest to develop this property. Consistent with the master developer selection process that was approved by the Board of Supervisors on May 23, 2006, the Airports staff will convene a selection committee consisting of County staff and representatives from the Airport and surrounding neighborhood. The selection committee will assist Airports staff in the review, interview (if deemed necessary), and selection of the preferred Master Developer. Upon selection, Airports staff will negotiate ground lease and business terms for this development. The draft lease will be brought back to the Board of Supervisors for review and consideration. The environmental review process will proceed on a parallel path and will be scheduled for Board of Supervisors review and consideration either before, or concurrently with, lease approval. Development of this 4.6-acre vacant parcel for business park use would expand economic development activity at Buchanan Field Airport and lead to increased revenues to the Airport Enterprise Fund. This development will also facilitate the growth and development as identified in the adopted Buchanan Field Airport Master Plan. A business proposal must be consistent with the Airport Master Plan and General Plan for consideration. Unless and until a final lease agreement is fully executed by all parties, this Board Order, any draft lease agreement, other communications or conduct of the parties shall have absolutely no legal effect, may not be used to impose any legally binding obligation on the County and may not be used as evidence of any oral or implied agreement between the parties or as evidence of the terms and conditions of any implied agreement. CONSEQUENCE OF NEGATIVE ACTION: Delay in initiating the developer selection process will result in a delay of developing vacant land at Buchanan Field Airport and may negatively impact the Airport Enterprise Fund and County General Fund. RECOMMENDATION(S): APPROVE and AUTHORIZE the Chair, Board of Supervisors, as governing board of the Contra Costa County Flood Control and Water Conservation District (FC District), to execute a reimbursement agreement with Tri Pointe Homes, Inc., in an amount not to exceed $866,170, for the period of December 6, 2016 through December 6, 2026, for Drainage Area 52C improvements, Brentwood area. FISCAL IMPACT: The reimbursement will be made from Drainage Area 52C (DA 52C) funds, which are collected pursuant to Contra Costa County Ordinance No. 2007-11. BACKGROUND: Tri Pointe Homes, Inc., constructed off-tract storm drain improvements, which are part of Subdivision 8548. Subdivision 8548 is within the jurisdiction of the City of Brentwood (City). The City’s conditions of approval for these subdivisions required the developers to install a portion of the drainage facilities shown on the adopted Drainage Plan for DA 52C. The facilities were APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Tim Jensen, (925) 313-2390 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tim Jensen, Flood Control, Teri E. Rie, Flood Control, Craig Standafer, Flood Control, Beth Balita, Finance, Catherine Windham, Flood Control, Brian Barry, Tri Pointe Homes C. 14 To:Contra Costa County Flood Control District Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Reimbursement Agreement with Tri Pointe Homes, Inc., for Drainage Area 52C Improvements, Brentwood area. Project No. 7571-6D8703 BACKGROUND: (CONT'D) installed per the approved plans. The cost to install these facilities exceeded the amount of the drainage fee required by the drainage fee ordinance for DA 52C (Contra Costa County Ordinance No. 2007-11). Since the FC District has a Drainage Plan and a Drainage Area Credit and Reimbursement Policy (Policy) for DA 52C, Tri Pointe Homes, Inc., is entitled to reimbursement of the drainage facility construction costs in excess of its drainage fees, as provided for in the Policy. As stated in Exhibit "A" of the agreement, the reimbursement obligation is effective for a base period of ten years (i.e., 40 quarters) from the date that the first payment is made under the agreement. CONSEQUENCE OF NEGATIVE ACTION: Without the approval of the Board of Supervisors, the FC District will not reimburse Tri Pointe Homes, Inc., as required under the Policy. ATTACHMENTS Reimbursement Agreement RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a month-to-month hangar rental agreement with Andrew Wells for a shade hangar at Buchanan Field Airport effective November 19, 2016 in the monthly amount of $177.07, Pacheco area. FISCAL IMPACT: The Airport Enterprise Fund will realize $2,124.84 annually. BACKGROUND: On September 1, 1970, Buchanan Airport Hangar Company entered into a 30-year lease with Contra Costa County for the construction of seventy-five (75) hangars and eighteen (18) aircraft shelters at Buchanan Field Airport. Buchanan Airport Hangar Company was responsible APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Lee, (925) 681-4200 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 15 To:Board of Supervisors From:Keith Freitas, Airports Director Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a hangar rental agreement with Buchanan Field Airport Hangar tenant BACKGROUND: (CONT'D) for the maintenance and property management of the property during that 30-year period. On September 1, 2000, the County obtained ownership of the aircraft hangars and shelters, pursuant to the terms of the above lease. On February 13, 2007, Contra Costa County Board of Supervisors approved the new Large Hangar Lease Agreement for use with the larger East Ramp Hangars. On February 3, 2008, Contra Costa County Board of Supervisors approved the amended T-Hangar Lease Agreement which removed the Aircraft Physical Damage Insurance requirement. The new amended T-hangar Lease Agreement will be used to enter into this aircraft rental agreement. CONSEQUENCE OF NEGATIVE ACTION: A negative action will cause a loss of revenue to the Airport Enterprise Fund. ATTACHMENTS Hangar Agreement-Andrew Wells RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a month-to-month hangar rental agreement with Peter Monillas for a T-hangar at Buchanan Field Airport effective November 18, 2016 in the monthly amount of $394.10, Pacheco area. FISCAL IMPACT: The Airport Enterprise Fund will realize $4,729.20 annually. BACKGROUND: On September 1, 1970, Buchanan Airport Hangar Company entered into a 30-year lease with Contra Costa County for the construction of seventy-five (75) hangars and eighteen (18) aircraft shelters at Buchanan Field Airport. Buchanan Airport Hangar Company was responsible APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Lee, (925) 681-4200 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 16 To:Board of Supervisors From:Keith Freitas, Airports Director Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE the Director of Airports, or designee, to execute a hangar rental agreement with Buchanan Field Airport Hangar tenant BACKGROUND: (CONT'D) for the maintenance and property management of the property during that 30-year period. On September 1, 2000, the County obtained ownership of the aircraft hangars and shelters, pursuant to the terms of the above lease. On February 13, 2007, Contra Costa County Board of Supervisors approved the new Large Hangar Lease Agreement for use with the larger East Ramp Hangars. On February 3, 2008, Contra Costa County Board of Supervisors approved the amended T-Hangar Lease Agreement which removed the Aircraft Physical Damage Insurance requirement. The new amended T-hangar Lease Agreement will be used to enter into this aircraft rental agreement. CONSEQUENCE OF NEGATIVE ACTION: A negative action will cause a loss of revenue to the Airport Enterprise Fund. ATTACHMENTS Hangar Agreement-Peter Monillas RECOMMENDATION(S): DENY claims First Transit, Inc. & Jamon Wilkins, Nancy Clark, 21st Century Ins. as subrogee of William Walker, Vickie Foreman, and Domingo Pascua. DENY late claims filed by Eugene Mangini and Charles Paclik. FISCAL IMPACT: No fiscal impact. BACKGROUND: * APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Joellen Balbas 925-335-1906 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 17 To:Board of Supervisors From:David Twa, County Administrator Date:December 6, 2016 Contra Costa County Subject:Claims APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lauri Byerse, (925) 957-8860 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 18 To:Board of Supervisors From:Candace Andersen, District II Supervisor Date:December 6, 2016 Contra Costa County Subject:Resolution recognizing Bob Simmons of Walnut Creek City Council APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lauri Byers, (925) 957-8860 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 19 To:Board of Supervisors From:Candace Andersen, District II Supervisor Date:December 6, 2016 Contra Costa County Subject:Resolution recognizing and honoring the Lamorinda Wine Growers Association (LWGA) ATTACHMENTS Resolution No. 2016/636 In the matter of:Resolution No. 2016/636 recognizing the Lamorinda Wine Growers Association for their achievement in attaining the Lamorinda Viticulture Area designation. Whereas, the Contra Costa County Board of Supervisors recognizes the Lamorinda Wine Growers Association (LWGA), a non-profit organization 501c (6) comprised of Lamorinda wine grape growers and wine makers, for its achievement in attaining the Lamorinda American Viticulture Area (AVA) designation; and Whereas, Lamorinda American Viticulture Area (AVA) is newly established as the first and only AVA completely within Contra Costa County. An AVA designation identifies the area as producing quality wine grapes in Contra Costa County; and Whereas, Lamorinda AVA is the 233rd AVA in the nation and the 138th in California, and the 1st in Contra Costa County. The full text of the application is registered at the Federal Alcohol and Tobacco Tax and Trade Bureau (TTB); and Whereas, most members of the Lamorinda Wine Growers Association are growers or wine makers in the Lamorinda area and contribute to the flourishing and limited agricultural scene. They are also committed to educating the community about the unique characteristics that define grapes grown in the Lamorinda AVA, plus Lamorinda is the home of the first green winery in the County. Wine and grapes are about place , they speak of the soil from which they grew. Lamorinda’s wine is a new voice of the area; and Whereas, Lamorinda wine growing and making is a micro boutique suburban enclave of wine production to satisfy the locals with limited edition production. Now, Therefore, Be It Resolved that the Board of Supervisors of Contra Costa County congratulates the Lamorinda Wine Growers Association for its contribution in achieving AVA recognition locally, state-wide and nationally as a wine grape growing region. ___________________ CANDACE ANDERSEN Chair, District II Supervisor ______________________________________ JOHN GIOIA MARY N. PIEPHO District I Supervisor District III Supervisor ______________________________________ KAREN MITCHOFF FEDERAL D. GLOVER District IV Supervisor District V Supervisor I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, By: ____________________________________, Deputy APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Mike Carlson (925) 313-2321 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 20 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Honoring Karen Keene, Sr. Legislative Rep., California State Association of Counties and County Engineers Association of California on her retirement. ATTACHMENTS Resolution No. 2016/660 In the matter of:Resolution No. 2016/660 Recognizing Karen Keene on the occasion of her Retirement from the California State Association of Counties and the County Engineers Association of California. Whereas, Karen Keene has been a Senior Legislative Representative and Director of Federal Affairs for the California State Association of Counties (CSAC) and the County Engineers Association of California (CEAC) for 27 years, and Whereas, Ms. Keene through her tenure at CSAC/CEAC faithfully and patiently represented the needs and interests of County governments across the State, and Whereas, Ms. Keene served as CEAC staff for the Water Resources & Flood Control Policy Committee, the Resource Recovery & Waste Management Policy Committee, and the Surveying Policy Committee; and Whereas, Ms. Keene worked tirelessly on the many critical issues relating to County Government including permitting issues, funding of infrastructure programs, and legislation that threatened the ability of Counties to deliver services, and Whereas, Ms. Keene did all such things always with a smile, exhibiting patience, and perseverance even considering the fact that she was forced to do all this often surrounded by countless engineers, a feat of achievement in and of itself, and Whereas, after 27 years of dedicated service, Ms. Keene will be retiring from CSAC/CEAC, leaving behind a huge hole but will always keep the many friends she made during her career. NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors of the County of Contra Costa hereby commends and thanks Karen Keene for her dedicated service to the County of Contra Costa, the Counties of California, and the people of California and wish her and her husband Ron the best in their deserved retirement. ___________________ CANDACE ANDERSEN Chair, District II Supervisor ______________________________________ JOHN GIOIA MARY N. PIEPHO District I Supervisor District III Supervisor ______________________________________ KAREN MITCHOFF FEDERAL D. GLOVER District IV Supervisor District V Supervisor I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, By: ____________________________________, Deputy APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Arlene Lozada (925) 957-5240 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 21 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Recognizing Roylen Stack for her Thirty-Two years of dedicated Service in Contra Costa County and her retirement from public service ATTACHMENTS Resolution No. 2016/661 In the matter of:Resolution No. 2016/661 Recognizing Roylen Stack for her thirty-wwo years of dedicated service in Contra Costa County and her retirement from public service. WHEREAS, Roylen Stack began her career with Contra Costa County as an Account Clerk-Beginning Level with the Auditor-Controller’s Office on October 29, 1984; and WHEREAS, Roylen was promoted to the Account Clerk-Advanced Level on July 1, 1990; and WHEREAS, Roylen received another promotion as an Accounting Technician and started working in Public Health Finance on February 1, 1999; and WHEREAS, Roylen received a commendation for Service Excellence in 2006; and WHEREAS, Roylen has provided the daily support of various Public Health Programs over the years, performing specialized and complex clerical accounting work; and WHEREAS, Roylen has thorough knowledge of various grants assigned to her and had ensured that accounting guidelines and parameters are met; and WHEREAS, Roylen has a wealth of knowledge of the various aspects of her job and has been a good resource for other staff members; and WHEREAS, Roylen decided to retire at the end of the 2016 Calendar Year. NOW, THEREFORE, BE IT RESOLVED that the Board of Supervisors does hereby recognize Roylen Stack for the thirty-two years of dedicated service to Contra Costa County and her retirement from public service. ___________________ CANDACE ANDERSEN Chair, District II Supervisor ______________________________________ JOHN GIOIA MARY N. PIEPHO District I Supervisor District III Supervisor ______________________________________ KAREN MITCHOFF FEDERAL D. GLOVER District IV Supervisor District V Supervisor I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, By: ____________________________________, Deputy APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: James Lyons, 510-231-8692 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 22 To:Board of Supervisors From:John Gioia, District I Supervisor Date:December 6, 2016 Contra Costa County Subject:Recognizing Don Lau's Many Years of Community Service ATTACHMENTS Resolution No. 2016/673 In the matter of:Resolution No. 2016/673 RECOGNIZING DON LAU’S MANY YEARS OF COMMUNITY SERVICE Whereas, Over the course of Mr. Lau’s career with the YMCA of the East Bay, Mr. Lau worked his way up from Director of Educational Services to Executive Vice President/Regional Executive Director and most recently has stepped into the role of the Interim President/CEO; and Whereas, Mr. Lau was instrumental in the formation of some of the “Y’s” key facilities and programs in West Contra Costa County including the opening of the Hilltop YMCA in Richmond and the Rodeo Community YMCA in Bayo Vista, the formation of the Rosie’s Girls Program in partnership with Rosie the Riveter Trust and National Park Service and the opening of the infant/toddler centers for teen mothers who are attending Kennedy and Richmond High Schools; Whereas, Thanks largely to Mr. Lau’s leadership, important YMCA programs were funded including mental health services for children in the West Contra Costa Unified School District and early childhood education to the Richmond Child Development Center; and Whereas, Mr. Lau increased the West Contra Costa YMCA’s budget dramatically and now it operates more than 40 program locations in the region, supporting and nurturing youth and families; and Whereas, Mr. Lau is retiring after more than 30 years with the YMCA; and NOW THEREFORE BE IT RESOLVED, that the Board of Supervisors of Contra Costa County congratulates Mr. Lau on his retirement, thanks to him for his lasting contributions to Contra Costa County, and wishes him well on all future endeavors. ___________________ CANDACE ANDERSEN Chair, District II Supervisor ______________________________________ JOHN GIOIA MARY N. PIEPHO District I Supervisor District III Supervisor ______________________________________ KAREN MITCHOFF FEDERAL D. GLOVER District IV Supervisor District V Supervisor I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, By: ____________________________________, Deputy RECOMMENDATION(S): 1. RATIFY Moraga-Orinda Fire Protection District Ordinance No. 16-02, with the modifications attached to this Board Order. 2. DIRECT the Clerk of the Board of Supervisors to provide a certified copy of this Board Order to the Moraga-Orinda Fire Protection District within 15 days of this ratification, pursuant to Health and Safety Code section 13869.7. FISCAL IMPACT: None. BACKGROUND: Whenever a fire protection district adopts an ordinance that establishes building standards relating to fire safety that may be more stringent than State Fire Marshal and State Building Standards Code requirements, the fire protection district’s regulations are not effective within the jurisdictional boundaries of the unincorporated area of the County unless and until the Board of Supervisors ratifies the ordinance. (Health and Safety. Code, § 13869.7.) This Board Order ratifies the Moraga-Orinda Fire Protection District’s adoption of the 2016 California Fire Code with the District’s local amendments. This Board Order modifies the District’s ordinance by providing for the retention APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jason Crapo, 925-674-7722 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 23 To:Board of Supervisors From:Jason Crapo, County Building Official Date:December 6, 2016 Contra Costa County Subject:RATIFY Moraga-Orinda Fire Protection District Ordinance No. 16-02, adopting the 2016 California Fire Code with amendments BACKGROUND: (CONT'D) of Board of Supervisors’ discretion for final County approval of entitlements, completion of development improvements, and issuance of County stop work orders within the unincorporated areas of the County that are within the Moraga-Orinda Fire Protection District. This Board Order also provides for the retention of the County’s authority to regulate when State-adopted building standards codes and related codes are involved in order to achieve unincorporated area uniformity for matters such as park access, public road standards, and street names. CONSEQUENCE OF NEGATIVE ACTION: If the Moraga-Orinda Fire Protection District Ordinance No. 16-02 is not ratified, the ordinance would not be effective in the unincorporated area of the County within the District. CHILDREN'S IMPACT STATEMENT: None. ATTACHMENTS Moraga-Orinda Fire District Staff Report and Ordinance 16-02 County Modifications to MOFD Ordinance CONTRA COSTA COUNTY MODIFICATIONS TO MORAGA-ORINDA FIRE PROTECTION DISTRICT ORDINANCE NO. 16-02 1. § 102 – Applicability. This section is modified to clarify that it does not mandate the performance or non-performance of any act by the County and its planning agency, officers, and employees, and to clarify that the District has no legal authority to prescribe the governmental discretion and actions of the County and its officers and employees. County staff is hereby directed to cooperate to the greatest reasonable extent (subject to applicable County and State rules and regulations) with the District concerning the subjects of this section and Ordinance No. 16-02. 2. § 111 – Stop Orders. This section as modified and clarified does not mandate the county building inspector or other County official or agency to issue any stop work orders or to perform or not perform any act, and with this clarification is the same as § 102 above. 3. § 503 – Fire Apparatus Access Roads. This section is modified to clarify that nothing in it shall prevent the County from legislating, taking administrative action, and/or occupying this area of regulation to the extent allowed by law. This modification is made to retain the County’s ability to require uniform unincorporated area regulations such as public road improvements, widths, and access. 4. § 505 – Premises Identification. This section is modified to clarify that the County fully retains its authority pursuant to law to determine unincorporated area street names and addresses. 5. § 507 – Fire Protection Water Supplies. This section is modified in the same manner as § 503 except limited to the reservation of County discretion involving the provision of water for domestic use. 6. Section 6 - More Restrictive Requirements. This section is modified to clarify that nothing in it shall prevent the County from legislating in and/or occupying an area of regulation as hereinabove provided or otherwise allowed by law. In part, this modification is made to retain the County’s ability to require uniform unincorporated area regulations. 7. Modified Ordinance Ratification. In ratifying Ordinance No. 16-02, the Board of Supervisors has not reviewed and passed upon any “Findings of Necessity” that may have been prepared by the District, nor has it reviewed and passed upon the scope of the District’s Health and Safety Code regulatory authority. 8. Enforcement. The Chief of the Moraga-Orinda Fire Protection District is authorized to enforce Moraga-Orinda Fire Protection District Ordinance No. 16-02 within those portions of the District located within the unincorporated area of Contra Costa County. (Health and Saf. Code, § 13869.7(h)(1)(A).) H:\Client Matters\2016\FPD\Fire Code Ratifications\Modifications to MOFD 2016 Fire Code Ordinance.doc RECOMMENDATION(S): 1. RATIFY San Ramon Valley Fire Protection District Ordinance No. 34, with the modifications attached to this Board Order. 2. DIRECT the Clerk of the Board of Supervisors to provide a certified copy of this Board Order to the San Ramon Valley Fire Protection District within 15 days of this ratification, pursuant to Health and Safety Code section 13869.7. FISCAL IMPACT: None. BACKGROUND: Whenever a fire protection district adopts an ordinance that establishes building standards relating to fire safety that may be more stringent than State Fire Marshal and State Building Standards Code requirements, the fire protection district’s regulations are not effective within the jurisdictional boundaries of the unincorporated area of the County unless and until the Board of Supervisors ratifies the ordinance. (Health and Safety Code, § 13869.7.) This Board Order ratifies the San Ramon Valley Fire Protection District’s adoption of the 2016 California Fire Code with the District’s local amendments. This Board Order modifies the District’s ordinance by providing APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jason Crapo, 925-674-7722 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 24 To:Board of Supervisors From:Jason Crapo, County Building Official Date:December 6, 2016 Contra Costa County Subject:RATIFY San Ramon Valley Fire Protection District Ordinance No. 34, adopting the 2016 California Fire Code with local amendments BACKGROUND: (CONT'D) for the retention of Board of Supervisors’ discretion for final County approval of entitlements, completion of development improvements, and issuance of County stop work orders within the unincorporated areas of the County that are within the San Ramon Valley Fire Protection District. This Board Order also provides for the retention of the County’s authority to regulate when State-adopted building standards codes and related codes are involved in order to achieve unincorporated area uniformity for matters such as park access, public road standards, and street names. CONSEQUENCE OF NEGATIVE ACTION: If the San Ramon Valley Fire Protection District Ordinance No. 34 is not ratified, the ordinance would not be effective in the unincorporated area of the County within the District. ATTACHMENTS San Ramon Valley Fire Protection District Ordinance No. 34 Modifications to SRVFPD Ordinance No. 34 ORDINANCE NO. 34AN ORDINANCE OF THE SAN RAMON VALLEY FIRE PROTECTION DISTRICT OFCONTRA COSTA COUNTY, CALIFORNIA, ADOPTING PROVISIONS CONTAINED INTHE 2016 CALIFORNIA FIRE CODE (CALIFORNIA CODE OF REGULATIONS, TITLE24, PART 9) AND THE 2015 INTERNATIONAL FIRE CODE PUBLISHED BY THEINTERNATIONAL CODE COUNCIL INCLUDING APPENDIX CHAPTERS B, C, F, HAND K WITH CERTAIN ADDITIONS, DELETIONS AND AMENDMENTS THERETO,AND REPEALING SAN RAMON VALLEY FIRE PROTECTION DISTRICT ORDINANCENUMBER 29.THE BOARD OF DIRECTORS OF THE SAN RAMON VALLEY FIRE PROTECTIONDISTRICT DOES ORDAIN AS FOLLOWS:Part 1. ADOPTION OF THE INTERNATIONAL FIRE CODEFor the purpose of prescribing regulations governing conditions hazardous to life andproperty from fire, explosion or hazardous materials, that certain Code known as theCalifornia Fire Code published by the California Buildings Standards Commission beingparticular the 2016 edition thereof and the whole thereof, save and except such portionsas are hereinafter added , deleted, modified or amended by Part 4 and the 2015International Fire Code with such portions as are hereinafter added, deleted, or modifiedor amended by Part 2 of this ordinance, which contain non-building standards, is herebyadopted pursuant to Section 13869 of the California Health and Safety Code andincorporated as fully as if set out at length herein, and from the date on which thisordinance shall take effect, the provisions thereof shall be controlling within the limits ofthe San Ramon Valley Fire Protection District.Part 2. AMENDMENTS TO THE INTERNATIONAL FIRE CODEThe International Fire Code is amended and changed in the following respects:Section 101.1 is amended to read as follows:101.1 Title. These regulations shall be known as the Fire Code of, San RamonValley Fire Protection District, hereinafter referred to as "this code."Section 105.6 is amended to read as follows:105.6 Required operational permits. The fire code official is authorized to issueoperational permits for the operations set forth in Sections 105.6.1 through105.6.49.Section 105.6.49 is added to read as follows: 105.6.49 Christmas tree sales. An operational permit is required to engage inthe business of Christmas tree sales.Section 105.7 is amended to read as follows:105.7 Required construction permits. The fire code official is authorized toissue construction permits for work as set forth in Sections 105.7.1 through105.7.20.Section 105.7.19 is added to read as follows:105.7.19 Fire apparatus access. A construction permit is required to install,improve, modify, or remove public or private roadways, driveways, gates andbridges for temporary or permanent fire apparatus access.Section 105.7.20 is added to read as follows:105.7.20 Construction, alteration, or renovation of a building for which abuilding permit is required. A construction permit is required to construct, addto, alter, renovate, rebuild, or move into the jurisdiction a structure for which abuilding permit is required.Section 109.4 is amended to read as follows:109.4. Violation penalties. Persons who shall violate a provision of this code orshall fail to comply with any of the requirements thereof or who shall erect, install,alter, repair or do work in violation of the approved construction documents ordirective of the fire code official, or of a permit or certificate used under provisionsof this code, shall be subject to the criminal sanctions set forth in California Healthand Safety Code, Section 13871. Each day that a violation continues after suchdue notice has been served shall be deemed a separate offense.Section 111.4 is amended to read as follows:111.4 Failure to comply. Any person who shall continue any work after havingbeen served with a stop work order, except such work as that person is directedto perform to remove a violation or unsafe condition, shall be liable to a fine ofnot less than 500 dollars or not more than 5,000 dollars.Section 202 is amended to include certain definitions and reads as follows:Board of Directors. Shall mean the governing body of the District.Fire trail. Shall mean a graded fuel break of sufficient width, surface, and designto provide access for personnel and equipment to suppress and to assist inpreventing a surface extension of fires. Unwarranted fire alarm notification. The giving, signaling or transmission of analarm notification to a public fire station or emergency communications centerwhen such alarm is the result of a defective condition of an alarm system, systemservicing or testing, construction activities, ordinary household activities or othercause when no such danger exists.Section 304.1.2 is amended to read as follows:304.1.2 Vegetation. Weeds, grass, vines or other growth that is capable of beingignited and endangering property, shall be cut down and removed by the owneror occupant of the premises. Vegetation clearance upon default of owner oroccupant shall be in accordance with Appendix K.Exception: Vegetation clearance in areas deemed hazardous fire areas withinwildland-urban interface areas shall be in accordance with Appendix K.Section 401.3.4 is added and reads as follows:401.3.4 Unwarranted fire alarm notification. Notification of emergencyresponders based on an unwarranted alarm may be punishable by a fine. Inaddition, the responsible party may be liable for the operational and/oradministrative costs incurred from the emergency response and /or mitigationprocedures resulting from an unwarranted fire alarm notification.Chapter 4 Section 404 Fire Safety, Evacuation and Lockdown Plans is deleted in itsentirety.Chapter 4 Section 405 Emergency Evacuation Drills is deleted in its entirety.Chapter 4 Section 406 Employee Training and Response Procedures is deleted in itsentirety.Section 503.1.2.1 is added and reads as follows:503.1.2.1 Required additional access roads for residential developments. Thefire code official shall have the authority to require additional access roads servingresidential developments). The minimum number of access roads servingresidential developments) shall be based upon the number of dwelling units servedas follows:• 1-75 units, one public or private access road• 76-150 units, one public or private access road and one emergency accessroad• 151 + units, a minimum of two public or private access roadsSection 503.1.4 is added and reads as follows: 503.1.4 Access to open space and fire trails. Access to open land/space orexisting fire trail systems shall be maintained. Proposed land-use modificationsimpacting existing access shall provide alternate acceptable access, as approvedby the fire code official.Section 503.2 is amended and reads as follows:503.2 Specifications. Fire apparatus access roads shall be installed andarranged in accordance with Sections 503.2.1 through 503.2.8. The fire codeshall have the authority to modify the access specifications. When required bythe fire code official, technical assistance in accordance with Section 104.7.2 maybe required.Section 503.2.1 is amended and reads as follows:503.2.1.1 Parking of vehicles on fire apparatus access roads. For theparking of vehicles on a fire apparatus access road, roadway widths shall beincreased to accommodate the parking of vehicles as follows:1. Roadways 20 feet (6096 mm) in width, no parking permitted,2. Roadways 28 feet (8534 mm) in width, parking permitted on one side only.Parking is permitted on the side of the street absent fire hydrants, and3. Roadways 36 feet (10,973 mm) in width when parking is not restricted.Section 503.4.1 is amended and reads as follows:503.4.1 Traffic calming devices. Traffic calming devices shall be prohibitedunless approved by the fire code official. The design of traffic calming devicesshall be in concurrence with the responsible public works agency and the firecode official.Section 503.7 is added as a section brought forth from Appendix D, Section D 105 andreads as follows:503.7 Aerial Fire Apparatus Access Roads.503.7.1 Where required. Where the vertical distance between the grade planeand the highest roof surface exceed 30 feet (9144mm), approved aerial fireapparatus access roads shall be provided. For purposes of this section, thehighest roof surface shall be determined by measurement to the eave of a pitchedroof, the intersection of the roof to the exterior wall, or the top of parapet walls,whichever is greater.503.7.2 Width. Aerial fire apparatus access roads shall have a minimumunobstructed width of 26 feet (7925 mm), exclusive of shoulders, in theimmediate vicinity of the building or portion thereof. 503.7.3 Proximity to building. At least one of the required access routesmeeting this condition shall be located within a minimum of 15 feet (4572 mm)and a maximum of 30 feet (9144 mm) from the building, and shall be positionedparallel to one entire side of the building. The side of the building on which theaerial fire apparatus access road is positioned shall be approved by the fire codeofficial.503.7.4 Obstructions. Overhead utility power lines shall not be located over theaerial fire apparatus access road or between the aerial fire apparatus road andthe building. Other obstructions shall be permitted to be placed with the approvalof the fire code official.Section 507.2 is amended to read as follows:507.2 Type of water supply. A water supply shall consist of reservoirs, pressuretanks, elevated tanks, water mains or other fixed systems capable of providingfire flow. Swimming pools and ponds shall not be considered water storage forthe purposes of Section 507.Chapter 11 Construction requirements for existing buildings is deleted in its entirety;Section 5601.1.3 is amended to read as follows:5601.1.3 Fireworks. The possession, manufacture, storage, sale, handling anduse of fireworks within the jurisdiction of the San Ramon Valley Fire ProtectionDistrict are prohibited.Exceptions:1. Deleted2. Deleted3. The use of fireworks for fireworks displays as allowed in California Code ofRegulations, Title 19.4. DeletedSection 5704.2.9.6.1 is amended to read as follows:5704.2.9.6.1 Locations where above-ground tanks are prohibited. Storage ofClass I and II liquids in above-ground tanks outside of buildings is prohibitedwithin the limits established by law as the limits of districts in which such storageis prohibited, see Part 3.Section 5706.2.4.4 is amended to read as follows:5706.2.4.4 Locations where above-ground tanks are prohibited. The storageof Class I and II liquids in above-ground tanks is prohibited within the limits established by law as the limits of districts in which such storage is prohibited,see Part 3.Section 5806.2 is amended to read as follows:5806.2 Limitation. Storage offlammable cryogenic fluids in stationary containersoutside of buildings is prohibited within the limits established by law as the limitsof the districts in which such storage is prohibited, see Part 3.Section 6104.2 is amended to read as follows:6104.2 Maximum capacity within established limits. Within the limitsestablished by law restricting the storage of liquefied petroleum gas for theprotection of heavily populated or congested areas, the aggregate capacity ofany one installation shall not exceed a water capacity of 2,000 gallons, see Part3 for established limits.Chapter 11 is deleted in its entirety.Appendix K is added and reads as follows:K101 Appendix K- Hazardous Fuel AbatementK101.1 Scope. This appendix provides provisions intended to identify hazardareas and mitigate the risk of life and structures from intrusion of fire from wildlandfire exposures and fire exposures from adjacent structures and to mitigate firesfrom spreading to wildland fuels that may threaten to destroy life, overwhelm firesuppression capabilities, or result in large property loss.K101.2 Purpose. The purpose of this appendix is to establish minimumrequirements in wildland-urban interface areas that will increase the ability of abuilding to resist the intrusion of flame or burning embers projected by a vegetationfire, including the identification of hazardous fire areas that require applicabledefensible space provisions as set forth herein and enforced by the fire codeofficial and applicable state and local fire-resistive building standards that areenforced by the local building official.K101.3 Jurisdictional authority. The Board of Directors as the supervising,legislative and executive authority of this jurisdiction has the authority to actpursuant to Part 5 (commencing with Section §14875), Division 12, of the State ofCalifornia Health and Safety Code, to clear or order the clearing of rubbish, litteror other flammable material where such flammable material endangers the publicsafety by creating a fire hazard. Such fire hazard abatement shall be conductedin accordance with the provisions of said Part 5 and/or this Ordinance. In theapplication of the provisions of said Part 5 to fire hazard abatement proceedingunder this Ordinance and the Fire Protection District Law of 1961, the terms "Board of Directors" or "Board" when used in Part 5, shall mean the Board of Directors ofthis jurisdiction under this article; and the officer designated in Section §14890 ofPart 5 shall mean the Fire Chief.K102 DefinitionsK102.1 Definitions. For the purpose of this appendix certain terms are definedas follows:Combustible material includes seasonal and recurrent weeds, stubble, brush, dryleaves, tumbleweeds, rubbish, litter or flammable materials of any kind.Cost of abatement. Shall include all expenses incurred by the jurisdiction in itswork of abatement undertaken and administrative costs pursuant to Section K111of this Ordinance.Defensible space. An area either natural or man-made, where material capableof allowing a fire to spread unchecked has been treated, cleared or modified toslow the rate and intensify of an advancing wildfire and to create an area for firesuppression operations to occur.Fuelbreak. Shall mean a continuous strip of land upon and from which all rubbish,weeds, grass or other growth that could be expected to burn has been abated orotherwise removed in order to prevent extension of fire from one area to another.Fuel management plan. Is a plan that shall be based upon a site-specific wildfirerisk assessment that includes considerations of location, topography, aspect,flammable vegetation, climatic conditions and fire history. The plan shall addresswater supply, access, building ignition and fire resistance factors, fire protectionsystems and equipment, defensible space and vegetation management.(Reference California Government Code 51182)Hazardous fire area is a parcel of land which is privately or publicly owned andlocated within 500 feet of any mountainous area, forest or brush-, grass-coveredland, or any land that is covered with flammable material. This may include bothnative vegetative or ornamental shrubbery. Such areas may be designated as ahazardous fire area by the fire code official. (Reference: California GovernmentCode 51179, Public Resource Code 4291 and State Fire Hazardous Severity ZoneMaps)Parcel is a portion of land of any size, the area which is determined in the recordsof the County Assessor. (Reference Health and Safety Code 14883)Person. Includes; individuals, firms, partnerships, and corporations. Public nuisance is a declaration by the fire code official that the presence ofcombustible material on a parcel creates a fire hazard. (Health and Safety Code14875 and 14876)Rubbish. Means waste matter, litter, trash, refuse, debris and dirt on streets, orprivate property in the jurisdiction which is, or when dry may become, a fire hazard.Streets. Includes alleys, parkways, driveways, sidewalks, and areas betweensidewalks and curbs, highways, public right of ways, private road, trails,easements, and fire trails.Weeds. Means all vegetation growing upon streets or private property in thisjurisdiction and includes any of the following:1. Vegetation that bears seeds of a downy or wingy nature.2. Sagebrush, chaparral, and any other brush or weeds which, attains such largegrowth as to become, when dry, a fire menace to adjacent improved property.3. Vegetation that is otherwise noxious or dangerous.4. Poison oak and poison ivy when the conditions of growth are such as toconstitute a menace to the public health.5. Dry grass, stubble, brush, litter, or other flammable material which endangersthe public safety by creating a fire hazard. (Reference Health and Safety Code14875)WildIand-Urban interface area. Is that geographical area where structures andother human development meet or intermingle with wildland or vegetative fuels.K103 Unlawful disposal. Every person who places, deposits or dumpscombustible material on a parcel whether or not he owns such parcel, or whetheror not he so places, deposits or dumps on such parcel with the consent of theowner, thereof, is subject to the criminal sanctions set forth in Health and SafetyCode Section 13871.K104 Public nuisance. The Board of Directors may declare that all hazardousfire areas, including any combustible materials and dead trees, upon privateproperty or streets in this jurisdiction and all rubbish on private property or streetsin this jurisdiction are public nuisances. Such weed nuisance is seasonal andrecurrent.K105 Prohibition. No person who has any ownership or possessory interest in orcontrol of parcel of land shall allow to exist thereon any hazardous rubbish orweeds, trees, or other vegetation, which constitutes a fire hazard.K106 Contract for services. This Board of Directors reserves and retains thepower to award a contract for such hazard abatement work where the employeesof this jurisdiction are not used to perform such abatement work. K107 General abatement requirements. The provisions of this section shallgovern the abatement of combustible material creating a fire hazard uponpremises (reference Government Code 51175 - 51189 and Public ResourcesCode 4291).K107.1 Clearance of brush or vegetative growth from streets. The fire codeofficial is authorized to require areas within 10 feet on each side of fire apparatusaccess roads and driveways to be abated of flammable vegetation and othercombustible growth.Exception: Single specimens of trees, ornamental vegetative fuels or cultivatedground cover, such as green grass, ivy, succulents or similar plants used asground cover, provided they do not form a means of readily transmitting fire.K107.2 Clearance of brush, vegetative growth and combustible material fromparcels. All parcels declared a public nuisance by the Board of Directors shall becleared entirely of combustible material. If the fire code official determines thisimpractical, the provisions of Section K107.2 may be used.K107.2.1 Clearance of dead trees. Remove from the parcel all dead trees within100 feet of all structures.K107.2.2 Abatement of parcels 1 acre or less. Parcels one acre or less (43,560square feet) shall require abatement of the entire parcel.K107.2.3 Abatement of parcels greater than 1 acre. Parcels over one acre(43,560 square feet) may be required to comply with the following requirements:1. Parcels shall provide 15-foot disced or bladed fuelbreaks along the perimeterof the property line that borders a developed property.EXCEPTION: Mowed fuelbreaks are only acceptable if an area cannot bedisced due to terrain or other factors. Mowed fuelbreaks should bemaintained at a maximum height of 3-inches and a minimum width of 60-feet.2. Parcels 10 acres or more shall provide a 15-foot crossbreak to divide the parcelinto approximately 5-acre sections.EXCEPTION: Parcels that are used for agricultural purposes may contactthe Fire Prevention Division to request modifications to this requirement.K107.3 Clearance of brush or vegetative growth from structures. Any personowning, leasing, controlling, operating or maintaining any building in, upon, oradjoining any hazardous fire area shall at all times maintain defensible spacearound and adjacent to such building by removing and clearing away allcombustible material for a distance not less than 100 feet from all portions of thestructure. Distances may be increased by the fire code official based on sitespecific analysis of local conditions. EXCEPTION: Single specimens of trees, ornamental vegetative fuels orcultivated ground cover, such as green grass, ivy, succulents or similar plantsused as ground cover, provided they do not form a means of readilytransmitting fire.K107.3.1 Clearance of trees from chimney. Remove that portion of any tree thatextends within 10 feet of the outlet of any chimney or stovepipe.K107.3.2 Clearance of trees from structure. Maintain any tree, shrub, or otherplant adjacent to or overhanging any structure free of dead limbs, branches andother combustible material.K107.3.3 Clearance of roofs. Maintain the roof of any structure and roof guttersfree of leaves, needles, twigs and other combustible materials.K107.3.4 Ground clearance of trees. Limb trees within 100 feet of any buildingor structure or within 1 0 feet of that portion of any highway, street, alley or drivewaywhich is improved or used for vehicle travel or other vehicular purposes, so that noleafy foliage, twigs or branches are within 5 feet of the ground.K107.3.5 Clearance of trees from roofs. Maintain 5 feet of vertical clearancebetween roof surfaces and portions of trees overhanging any building or structure.K107.3.6 Clearance of trees from roadways and driveways. Mlaintain anunobstructed vertical clearance of not less than 13'6" above all roadways anddriveways.K108 Fire management plan. A fire management plan shall be prepared by theapplicant when required by the fire code official.K108.1 Cost. The cost of fire management plan preparation and review shall bethe responsibility of the applicant.K109 Clearance upon default of owner.K109.1 Notice. The fire code official of this jurisdiction may order the abatementof weeds, trees, and rubbish as described in Sections 304.1.2 and Appendix K.Copies of the legal notice shall be headed with the words "Legal Notice to AbateFire Hazard" in letters at least one inch high. The notice shall be in substantiallythe following form:LEGAL NOTICE TO ABATE FIRE HAZARDYou are hereby notified that an accumulation of grass, weeds, dead trees, and/orrubbish constitutes a fire hazard on the following described property owned by you:10 (Describe property by common street designation, by metes and bounds,Assessor's code area and parcel number, or by reference to attached map).You are hereby notified to remove the grass, weeds, dead trees and/or rubbishwithin fifteen (15) days from the date of this legal notice. If you fail to do so, theSan Ramon Valley Fire Protection District will abate it and the cost of theabatement, including administrative costs, will be collected as property taxes andwill be a lien on your property until paid. The lien may prevent the sale of theproperty and it shall be the responsibility of the property owner upon payment ofthe property taxes to have the lien removed. Contact the Fire District for a releaseof lien that must be filed by the property owner at the County Recorder's Office.You are hereby further notified that the Board of Directors has declared that suchgrass, weeds, dead trees and rubbish constitute a public nuisance and that suchweeds also constitute a seasonal and recurring nuisance.You may appear in person before the Board of Directors of this jurisdiction on (timeand date) at (place-room, street, address, and city) to show cause why this ordershould not be enforced. (Signed): (Name of fire code official or name of jurisdiction)K109.2 Mailed notice. The fire code official of this jurisdiction shall mail a copy ofthe legal notice to the owner of the affected property as he/she and his/her addressappear upon the current and last county equalized assessment roll as of January1 of each calendar year, or as his/her address is known to this jurisdiction. As analternative to mailing, the notice may be posted upon the affected property andpublished in this jurisdiction, not less than fifteen (15) days prior to the date of theabatement hearing. The notice shall also be provided to the Clerk of the Board ofDirectors three days prior to the Board hearing. It shall be the responsibility of thecurrent owner of record to notify the fire code official of a change in ownership onthe form provided.K109.3 Hearing. A date for hearing on the legal notice shall be scheduled at leastfifteen (15) days after the date of the notice. The date of the notice is the date onwhich the notice is placed in the United States mail or the date on which it is postedon the property. At the time and place stated in the notices, the Board of Directorsshall meet to hear the report of the fire code official and any objections thereto.The fire code official shall attend, inform the Board as to the alleged publicnuisance, and supply the description of the parcel upon which it exists, the nameand address of the last known property owner thereof, and state what has beendone in order to give notice of the hearing according to the provisions of this code.At the hearing, the property owner or their agent may appear to show cause whythe order shall not be enforced. For good cause shown, the Board of Directorsmay extend the time for compliance with the order or may rescind the order. Thedecision by the Board at the hearing is final. Upon the completion of the hearing,the Board shall authorize and direct the fire code official to abate any publicnuisance found by the District to exist on the parcel after the date specified in saidnotice.11 K109.4 Order of work. If, after a hearing, the Board of Directors finds that a publicnuisance exists upon a parcel, the Board may direct the fire code official to abatethe public nuisance. The Board shall maintain a record of its proceedings at suchhearing and retain therewith the report of the fire code official and a description ofsuch parcel and, where applicable, the name and address of its last knownproperty owner.K109.5 Contract award. If the owner fails to comply with the order, the fire codeofficial of this jurisdiction may have the public nuisance abated either by employeesof this jurisdiction or by contract.K110 Seasonal and recurrent nuisancesK110.1 Resolution. If, in the opinion of the fire code official, the public nuisanceon a parcel is seasonal and recurrent, the fire code official may ask the Board ofDirectors to so declare by resolution. If the Board of Directors makes such adeclaration by resolution, such seasonal and recurring public nuisance thereaftershall be abated every year without the necessity of any further hearing.K110.2 Notice. For a parcel subject to a declaration described in Section K110.1,it is sufficient to mail the legal notice to the same person and in the same manneras set forth in Section K109. The notice shall describe the parcel and shall statethat the parcel is subject to seasonal and recurring weeds that constitute a publicnuisance and must be cleared every year without the necessity of any furtherhearing. The notice shall further state that if the weeds constituting a publicnuisance are not cleared by the owners of the parcel by a specified date, they willbe abated by the District, in which case the cost of such abatement shall beassessed upon the parcel from which the private nuisance is abated and that suchcost will constitute a lien upon such parcel until paid. In the event the fire codeofficial sets a hearing before the Board of Directors as authorized by SectionK110.3, the notice shall also set forth the date, time and place of such hearing andshall be mailed at least fifteen (15) days before the hearing.K110.3 Optional hearing. Notwithstanding Section K110.1, the fire code officialmay set a hearing before the Board of Directors to consider any objections to theproposed abatement of the public nuisance as described in the notice pursuant toSection K110.2. The decision by the Board at the hearing is final. Upon thecompletion of the hearing, the Board shall authorize and direct the fire code officialto abate any public nuisance found by the District to exist on the parcel after thedate specified in said notice. The fire code official will place a work order on theproperty as stated in K109.4.K110.4 Optional second notice. At the discretion of the fire code official, if apublic nuisance is found to exist on a parcel after the date specified in the firstnotice pursuant to Section K110.2, a second notice may be mailed or delivered tothe same person to whom the first notice was mailed. The second notice shall12 state that the public nuisance will be abated by the District unless it is otherwiseabated immediately or by a specified date. The mailing or delivery of a secondnotice does not create any right to object or further object to the proposedabatement of the public nuisance.K111 Collection of the cost of abatementK111.1 Abatement report of costs. The fire code official or his or her designeeabating the nuisance shall keep an account of the cost of abatement in front of oron each separate parcel of land and shall render an itemized report in writing tothe Board of Directors showing the cost of removing the weeds, dead trees andrubbish on or in front of each separate lot or parcel of land, or both.K111.2 Confirmation of expense account. Before the report is submitted to theBoard of Directors, a copy of it shall be posted for at least three days on or nearthe chamber door of the Board with a notice of the time and when the report willbe submitted to the Board for confirmation. Said report and notice shall also beposted for the said three days in two other public places in the District. At the timefixed for receiving and considering the report, the Board of Directors shall hear itand any objections of any of the property owners liable to be assessed for the workof abatement. Thereupon, the Board of Directors may make such modifications inthe report, as it deems necessary, after which by order of resolution, the reportshall be confirmed.K111.3 Special assessment and lien. The amounts of the cost, includingadministrative costs, for abating the nuisance in front of or upon the various parcelsof the land mentioned in the report as confirmed shall constitute specialassessment against the respective parcels of land, and a lien on the property forthe amount of the respective assessments.K111.4Transmittal of account. Such lien attaches upon recordation in the officeof the County Recorder of the County in which the property is situated of a certifiedcopy of the Resolution of Confirmation.K111.5 Cost assessments. Upon confirmation of the report of cost by the Boardof Directors of th is jurisdiction and the recordation of the Resolution of Confirmationby the administrator, a copy of the report of cost shall be sent to the County Auditor,who shall enter the amount of the assessments against the parcels. Thereafterthe amount of the assessments shall be collected at the same time and in the sameway as County taxes are collected. The owners are subject to the same penaltiesand the same procedure and sale in case of delinquency as provided for ordinarycounty taxes. All laws applicable to the levy, collection, and enforcement of Countytaxes are applicable to these assessment taxes.K111.6 Grounds for cancellation or refund. If a property owner believes anassessment against the owner's property pursuant to Section K109 and K110 was13 entered, charged or paid more than once, through clerical error, through the erroror mistake of the District in respect to any material fact, or illegally, the owner mustin compliance with applicable law present a claim to the Board of Directors for anorder cancelling (if uncollected) or refunding (if collected) the assessment.K112 Alternate mitigation.K112.1 Fuelbreaks. In lieu of ordering abatement as provided in Section K107,the fire code official of this jurisdiction may order the preparation of fuelbreaksaround parcels of property where combustible grass, weeds, crops, or brush arepresent. In determining the proper width for fuelbreaks, the fire code official shallconsider the height of the growth, weather condition, topography, values at riskand the accessibility to the property for fire protection equipment. The procedureset forth in Section K1 09 for the abatement of weeds and rubbish shall apply to thepreparation offuelbreaks.14 Part 3. GEOGRAPHIC LIMITS FOR CERTAIN HAZARDOUSMATERIALSThat the geographic limits referred to in certain sections of the 2016 California Fire Codeare hereby established as follows, these provisions may be modified based on theGeneral or Specific Plan of the city or County:3.1 The limits referred to in Section 5704.2.9.6.1 of the International Fire Code inwhich storage of Class I and II liquids in-above-ground tanks outside of buildingsis prohibited, are hereby established as follows: Prohibited in any area asestablished by applicable land-use and zoning standards.3.2 The limits referred to in Section 5706.2.4.4 of the International Fire Code inwhich storage of Class I and II liquids in above-ground tanks is prohibited, arehereby established as follows: Prohibited in any area as established by applicableland-use and zoning standards.3.3 The limits referred to in Section 5806.2 of the International Fire Code in whichthe storage of flammable cryogenic fluids in stationary containers is prohibited ishereby established as follows: Prohibited in any area as established by applicableland-use and zoning standards.3.4 The limits referred to in Section 6104.2 of the International Fire Code, in whichstorage of liquefied petroleum gas is restricted, are hereby established as follows:Prohibited in any area as established by applicable land-use and zoning standards.Part 4 CHANGES TO BUILDING STANDARDSI. Changes or Modifications more stringent than the California Building StandardsCodeChanges and modifications that are more stringent than the requirements published inthe California Building Standards Code are adopted pursuant to the provisions containedin California Health and Safety Code 13869.7In the event the City of San Ramon, Town of Danville, or Contra Costa County, adoptmore restrictive requirements, or amend provisions contained herein in accordance withCalifornia Health and Safety Code Section 13869.7(c); those more restrictive or amendedrequirements shall only apply within the jurisdiction ratifying such requirements.The Board of Directors of the San Ramon Valley Fire Protection District, in its Ordinanceadopting and amending regulations that are more restrictive than the 2016 CaliforniaBuilding Standards Code, Title 24, Part 9, Section 903 of the California Fire Codeare described below;Section 902 is added and reads as follows:15 SUBSTANTIAL REMODEL. In existing buildings, any alteration that causesadditional floor area that is more than fifty percent (50%) of the existing floor areaand where the total floor area exceeds 5000 square feet.SUBSTANTIAL REMODEL, Group R-3. In an existing R-3 structure, anyalteration that causes additional floor area that exceeds fifty percent (50%) of theexisting floor area and where the total floor area exceeds 5000 square feet.Section 903 is amended and reads as follows:903.1 General. Automatic sprinkler systems shall comply with this section. Forthe purposes of this section, fire walls shall not be considered as creatingseparate buildings. An automatic sprinkler system shall be provided for all newbuildings with a gross floor area that exceeds 5000 square feet and in thelocations set forth in Section 903.EXCEPTION: Group U occupancies.903.2.1.1 Group A-1. An automatic sprinkler system shall be provided for fireareas containing Group A-1 occupancies and intervening floors of the buildingwhere one of the following conditions exists:1. The fire area exceeds 5000 square feet.903.2.1.3 Group A-3< An automatic sprinkler system shall be provided for fireareas containing Group A-3 occupancies and intervening floors of the buildingwhere one of the following conditions exists:1. The fire area exceeds 5000 square feet.903.2.1.4 Group A-4. An automatic sprinkler system shall be provided for fireareas containing Group A-4 occupancies and intervening floors of the buildingwhere one of the following conditions exists:1. The fire area exceeds 5000 square feet903.2.2.1 Group B. An automatic sprinkler system shall be provided for fire areascontaining Group B occupancies and intervening floors of the building where oneof the following conditions exist:1. The fire area exceeds 5,000 square feet.903.2.3 Group E. An automatic sprinkler system shall be provided for Group Eoccupancies as follows:1. Throughout all Group E fire areas greater than 5,000 square feet in area.903.2.4 Group F-1. An automatic sprinkler system shall be provided throughoutall buildings containing a Group F-1 occupancy where one of the followingconditions exists:1. A Group F-1 fire area exceeds 5,000 square feet.16 903.2.7 Group M. An automatic sprinkler system shall be provided throughoutbuildings containing a Group M occupancy where one of the following conditionsexists:1. A Group M fire area exceeds 5,000 square feet.903.2.9 Group S-1. An automatic sprinkler system shall be provided throughoutall buildings containing a Group S-1 occupancy where one of the followingconditions exists:1. A Group S-1 fire area exceeds 5,000 square feet903.2.9.1 Repair garages. An automatic sprinkler system shall be providedthroughout all buildings used as repair garages in accordance with Section 406.8of the California Building Code, as shown:1. Buildings with a fire area containing a repair garage exceeding 5,000 squarefeet.903.2.10 Group S-2 enclosed parking garages. An automatic sprinkler systemshall be provided throughout buildings classified as enclosed parking garages inaccordance with Section 406.4 of the California Building Code as follows:1. Where the fire area of the enclosed parking garage exceeds 5,000 square feetSection 903.3.1.1.3 is added to read as follows:903.3.1.1.3 Undeclared Use and Tenant Space. In buildings of undeclared useor with tenant space areas; the fire sprinkler system may be required to bedesigned to conform to the design density of the most hazardous occupancy useallowed within the building. Where a subsequent occupancy requires a system withgreater capability, it shall be the responsibility of the owner and/or the occupant toupgrade the system.Section 903.6.1 is added and reads as follows:903.6.1 Substantial Remodel. In an existing building, if a substantial remodeloccurs the entire building shall be protected by an automatic sprinkler system inaccordance with section 903.Section 903.6.1.1 is added and reads as follows:903.6.1.1 Substantial Remodel, Group R-3. An automatic sprinkler system shallbe provided throughout all existing Group R-3 dwellings where a substantialremodel occurs or where the gross floor area of the building exceeds 8,000 squarefeet.EXCEPTION: When additional floor area does not exceed 1000 squarefeet.17 11. FindingsPursuant to Section §17958.5 and §17958.7 of the California Health and Safety Code,the Board of Directors of the San Ramon Valley Fire Protection District finds that theabove referenced change, modification, and amendment is needed and is reasonablynecessary because of certain local climatic, geological, and topographic conditions asdescribed below.A. Climatic1. Precipitation and Relative Humidity(a) ConditionsPrecipitation ranges from 15 to 24 inches per year with an average ofapproximately 20 inches per year. Ninety-six (96) percent falls during the monthsof October through April and four (4) percent from May through September. Thisis a dry period of at least five (5) months each year. Additionally, the area is subjectto occasional drought. Relative humidity remains in the middle range most of thetime. It ranges from forty-five (45) to sixty-five (65) percent during spring, summer,fall, and from sixty (60) to ninety (90) percent in the winter. It occasionally falls aslow as fifteen (15) percent.(b) ImpactLocally experienced dry periods cause extreme dryness of untreated wood shakesand shingles on buildings and non-irrigated grass, brush and weeds, which areoften near buildings with wood roofs and sidings. Such dryness causes thesematerials to ignite very readily and burn rapidly and intensely.Because ofdryness, a rapidly burning grass fire or exterior building fire can quicklytransfer to other buildings by means of radiation or flying brands, sparks andembers. A small fire can rapidly grow to a magnitude beyond the controlcapabilities of the Fire District resulting in an excessive fire loss.2. Temperature(a) ConditionsTemperatures have been recorded as high as 114° F. Average summer highs arein the 90° range, with average maximums of 105° F.(b) ImpactHigh temperatures cause rapid fatigue and heat exhaustion of firefighters, herebyreducing their effectiveness and ability to control large building and wildland fires.Another impact from high temperatures is that combustible building material andnon-irrigated weeds, grass and brush are preheated, thus causing these materialsto ignite more readily and burn more rapidly and intensely. Additionally, theresultant higher temperature of the atmosphere surrounding the materials reducesthe effectiveness of the water being applied to the burning materials. This requiresthat more water be applied, which in turn requires more Fire District resources inorder to control a fire on a hot day. High temperatures directly contribute to the18 rapid growth of fires to an intensity and magnitude beyond the control capabilitiesof the Fire District.3. Winds(a) ConditionsPrevailing winds in the area are from the south or southwest in the mornings andfrom the north or northwest in the afternoons. However, winds are experiencedfrom virtually every direction at one time or another. Velocities are generally in thefourteen (14) mph to twenty-three (23) mph ranges, gusting to twenty-five (25) tothirty-five (35) mph. Forty (40) mph winds are experienced occasionally and windsup to fifty-five (55) mph have been registered locally. During the winter half of theyear, strong, dry, gusty winds from the north move through the area for severaldays creating extremely dry conditions.(b) ImpactWinds such as those experienced locally can and do cause fires, both interior andexterior, to bum and spread rapidly. Fires involving non-irrigated weeds, grassand brush can grow to a magnitude and be fanned to an intensity beyond thecontrol capabilities of the Fire District very quickly even by relatively moderatewinds. When such fires are not controlled, they can extend to nearby buildings,particularly those with untreated wood shakes or shingles.Winds of the type experienced locally also reduce the effectiveness of exteriorwater streams used by the Fire District on fires involving large interior areas ofbuildings, fires which have vented through windows and roofs due to inadequatebuilt-in fire protection and fires involving wood shake and shingle building exteriors.Local winds will continue to be a definite factor towards causing major fire lossesto buildings not provided with fire resistive roof and siding materials andbuildings with inadequately separated interior areas or lacking automatic fireprotection systems. National statistics frequently cite wind conditions, such asthose experienced locally, as a major factor where conflagrations have occurred.4. SummaryThese local climatic conditions affect the acceleration, intensity, and size of fire inthe community. Times of little or no rainfall, of low humidity, and high temperaturescreate extremely hazardous conditions, particularly as they relate to wood shakeand shingle roof fires and conflagrations. The winds experienced in this area canhave a tremendous impact upon structure fires. During wood shake and shingleroof fires, or exposure fires, winds can carry sparks and burning brands to otherstructures, thus spreading the fire and causing conflagrations. In building fires,winds can literally force fires back into the building and can create a blow torcheffect, in addition to preventing "natural" ventilation and cross-ventilation efforts.B. Geological and Topographic1. Seismicity(a) Conditions19 Contra Costa County is located in Seismic Risk Zone 4, which is the worstearthquake area in the United States. Buildings and other structures in Zone 4can experience major seismic damage. Contra Costa County is in close proximityto the San Andreas Fault and contains all or portions of the Hayward, Calaveras,Concord, Antioch, Mt. Diablo, and other lesser faults. A 4.1 earthquake with itsepicenter in Concord occurred in 1958, and a 5.4 earthquake with its epicenteralso in Concord occurred in 1955. The Concord and Antioch faults have a potentialfor a Richter 6 earthquake and the Hayward and Calaveras faults have thepotential for a Richter 7 earthquake. Minor tremblers from seismic activity are notuncommon in the area.Interstate 680 runs the length of the San Ramon Valley to Interstate 580 inAlameda County. The interstate divides the valley into a west and east side.Through the valley, the interstate is trans versed by 8 underpasses and 7overcrossings. An overpass or undercrossing collapse would significantly alter theresponse route and time of responding emergency equipment. This is due tolimited crossings of the interstate and that the valley has only one surface street,which runs parallel to the interstate which, would be congested during a significantemergency.Earthquakes 'of the magnitude experienced locally can cause majordamage to electrical transmission facilities, which, in turn, cause powerfailures while at the same time starting fires throughout the Fire District. Theoccurrence of multiple fires will quickly deplete existing fire department resources;hereby reducing and/or delaying their response to any given fire. Additionally,without electrical power, elevators, smoke management systems, lightingsystems, alarm systems and other electrical equipment urgently needed forbuilding evacuation and fire control in large buildings would be inoperative, therebyresulting in loss of life and/or major fire losses in such buildings.(b) ImpactA major earthquake could severely restrict the response of the Fire District and itscapability to control fires involving buildings of wood frame construction, withordinary wood shake and shingle exteriors, or with large interior areas not providedwith automatic smoke and fire control systems.2. Soils(a) ConditionsThe area is replete with various soils, which are unstable, clay loam and alluvialfans being predominant. These soil conditions are moderately to severely prone toswelling and shrinking, are plastic, and tend to liquefy.Throughout the San Ramon Valley, the topography and development growth hascreated a network of older, narrow roads. These roads vary from gravel to asphaltsurface and vary in percent of slope, many exceeding twenty- (20) percent.Several of these roads extend up through the winding passageways in the hillsproviding access to remote, affluent housing subdivisions. The majority of theseroads are private with no established maintenance program. During inclement20 weather, these roads are subject to rock and mudslides, as well as down trees,obstructing all vehicle traffic. It is anticipated that during an earthquake, several ofthese roads would be impassable.Examples:1. Roundhill Estates in Alamo - access restricted for fire equipment due to roadgrade and width.2. West hillside area in Danville and Alamo would restrict access for Station's 31,32, and 33.3. Tassajara Valley and Morgan Territory roads would restrict access for Station's30, 35, 36 and 37.3. Topographic(a) Conditionsi. VegetationHighly combustible dry grass, weeds, and brush are common in the hilly and openspace areas adjacent to built-up locations six (6) to eight (8) months of each year.Many of these areas frequently experience wildland fires, which threaten nearbybuildings, particularly those with wood roofs, or sidings. This condition can befound throughout the District, especially in those developed and developing areasof the District.ii. Surface FeaturesThe arrangement and location of natural and manmade surface features, includinghills, creeks, canals, freeways, housing tracts, commercial development, firestations, streets and roads, combine to limit feasible response routes for FireDistrict resources in and to District areas.iii. Buildings, Landscaping and TerrainMany of the "newer" large buildings and building complexes have building accessand landscaping features and designs, which preclude or greatly limit anyapproach or operational access to them by Fire District vehicles. In addition, thepresence of security gates and roads of inadequate width and grades whichare too steep for Fire District vehicles adversely effect fire suppression efforts.When Fire District vehicles cannot gain access to buildings involved with fire,the potential for complete loss is realized. Difficulty reaching a fire site oftenrequires that fire personnel both in numbers and in stamina. Access problemsoften result in severely delaying, misdirecting or making impossible fire and smokecontrol efforts.(b) ImpactThe above local geological and topographical conditions increase the magnitude,exposure, accessibility problems, and fire hazards presented to the San RamonValley Fire Protection District. Fire following an earthquake has the potential ofcausing greater loss of life and damage than the earthquake itself. Hazardous21 materials, particularly toxic gases, could pose the greatest threat to the largestnumber, should a significant seismic event occur. Public Safety resources wouldhave to be prioritized to mitigate the greatest threat, and may likely be unavailablefor smaller single dwelling or structure fires.Other variables may tend to intensify the situation:1. The extent of damage to the water system.2. The extent of isolation due to bridge and/or freeway overpass collapse.3. The extent of roadway damage and/or amount of debris blocking the roadways.4. Climatic conditions (hot, dry weather with high winds).5. Time of day will influence the amount of traffic on roadways and could intensifythe risk to life during normal business hours.6. The availability of timely mutual aid or military assistance.7. The large portion of dwellings with wood shake or shingles coverings couldresult in conflagrations.4. SummaryLocal climatic, geologic, and topographic conditions impact fire prevention efforts,and the frequency, spread, acceleration, intensity, and size of fire involvingbuildings in this community. Further, they impact potential damage to all structuresfrom earthquake and subsequent fire. An example of this was the October 17,1989 Loma Prieta earthquake measuring 6.9 on the San Andreas fault centerednear Santa Cruz, caused one residential fire and numerous commercial buildingsto have damage.Part 5. REPEAL OF CONFLICTING ORDINANCESThe following Ordinance previously adopted by the Board of Directors is.hereby repealed:Ordinance No.29, San Ramon Valley Fire Protection District.Part 6. PUBLICATIONSThat the Fire District Clerk of San Ramon Valley Fire Protection District is hereby directedto cause this ordinance to be published within fifteen (15) days of passage, with thenames of the Directors voting for and against it, in the San Ramon Valley Times, anewspaper of general circulation in this District.22 Part 7. EFFECTIVE DATEThat this ordinance and the rules, regulations, provisions, requirements, orders andmatters established and adopted hereby shall take effect and be in full force, beginningJanuary 1, 2017 and after its final passage and adoption.Passed and Adopted onRctober 27 ' 2016 , by the following Vote:Roll-call vote: Directors Stamey, Kerr, Stark,and Barker. Director Eampbell-: absenty^YES: §tamey> Kerr, Stark and ParkerNOES: NoneABSENT: Director Campbell{ATTEST:Donna MaxwellDistrict ClerkDonald R. Parker, PresidentBoard of Directors23 CONTRA COSTA COUNTY MODIFICATIONS TO SAN RAMON VALLEY FIRE PROTECTION DISTRICT ORDINANCE NO. 34 1. § 102 – Applicability. This section is modified to clarify that it does not mandate the performance or non-performance of any act by the County and its planning agency, officers, and employees, and to clarify that the District has no legal authority to prescribe the governmental discretion and actions of the County and its officers and employees. County staff is hereby directed to cooperate to the greatest reasonable extent (subject to applicable County and State rules and regulations) with the District concerning the subjects of this section and Ordinance No. 34. 2. § 111 – Stop Orders. This section as modified and clarified does not mandate the county building inspector or other County official or agency to issue any stop work orders or to perform or not perform any act, and with this clarification is the same as § 102 above. 3. § 503 – Fire Apparatus Access Roads. This section is modified to clarify that nothing in it shall prevent the County from legislating, taking administrative action, and/or occupying this area of regulation to the extent allowed by law. This modification is made to retain the County’s ability to require uniform unincorporated area regulations such as public road improvements, widths, and access. 4. § 505 – Premises Identification. This section is modified to clarify that the County fully retains its authority pursuant to law to determine unincorporated area street names and addresses. 5. § 507 – Fire Protection Water Supplies. This section is modified in the same manner as § 503 except limited to the reservation of County discretion involving the provision of water for domestic use. 6. Part 4 - More Restrictive Requirements. Part 4 is modified to clarify that nothing in it shall prevent the County from legislating in and/or occupying an area of regulation as hereinabove provided or otherwise allowed by law. In part, this modification is made to retain the County’s ability to require uniform unincorporated area regulations. 7. Modified Ordinance Ratification. In ratifying Ordinance No. 34, the Board of Supervisors has not reviewed and passed upon any “Findings of Necessity” that may have been prepared by the District, nor has it reviewed and passed upon the scope of the District’s Health and Safety Code regulatory authority. 8. Enforcement. The Chief of the San Ramon Valley Fire Protection District is authorized to enforce San Ramon Valley Fire Protection District Ordinance No. 34 within those portions of the District located within the unincorporated area of Contra Costa County. (Health and Saf. Code, § 13869.7(h)(1)(A).) H:\Client Matters\2016\FPD\Fire Code Ratifications\Modifications to SRVFPD 2016 Fire Code Ordinance.doc RECOMMENDATION(S): INTRODUCE Ordinance No. 2016-26, amending Section 25-4.608 of the County Ordinance Code to authorize the evaluation and consideration of competing public interests under Government Code section 6255 when responding to Public Records Act requests; WAIVE reading, and FIX December 13, 2016, for adoption. FISCAL IMPACT: Fiscal impacts are unknown. BACKGROUND: The California Public Records Act (PRA), codified in Government Code section 6250 et seq., was enacted in 1968 to give the public a tool to monitor the functioning of their government. To this end, the PRA gives the public the right to inspect or obtain a copy of identifiable public records, provided that the request for records is both specific and focused. In 1995, this County enacted the Better Government Ordinance (BGO) to provide greater rights of access to records than those afforded by state law. Over the past 20 years, this County has had the opportunity to see which aspects of the ordinance are working and which would benefit from further revision. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: David Twa, County Administrator 925-335-1086 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Sharon Anderson, County Counsel, All County Departments (via County Administration) C. 25 To:Board of Supervisors From:David Twa, County Administrator Date:December 6, 2016 Contra Costa County Subject:Amendment of County Ordinance Code to Authorize Consideration of Competing Public Interests under Government Code section 6255 BACKGROUND: (CONT'D) > This County places great importance on providing the public with timely and complete information. In furtherance of that objective, the County trains staff to help those seeking records to focus their requests so that information can be quickly provided in a convenient format. In most cases we believe we achieve that goal. Because the PRA contains few limitations on its use, it can be, and sometimes is, used for improper or illegal purposes such as the disruption or delay of governmental operations, intimidation of public employees, fraud, coercion, or worse. Over the past 20 years, safety concerns have increased, both in terms of individual safety and technological security. From time to time, the County receives requests for information about a specific individual, inquiring their whereabouts or activities, raising serious concerns about the named individual’s safety. Additionally, there are times when the County receives requests for information, which if released, potentially could threaten the security of the County’s detention facilities or the County’s technological capabilities. The PRA permits records to be withheld when the public interest in nondisclosure is outweighed by the public interest in disclosure (Gov. Code, § 6255). For example, under the PRA, courts have found that the public interest is served by the nondisclosure of records when the release of records could compromise the safety of an individual or the agency; stifle the information gathering process of policy makers; or when the scope of the request is so unduly burdensome that it undermines the ability of the responding agency to operate efficiently and effectively. The BGO eliminated this protection. As a result, there are times when the County cannot fully protect itself against the disclosure of sensitive records, the unreasonable use of taxpayer resources, a potential risk to individual safety, or a threat to the County’s ability to operate. This action would amend the BGO to allow use of the public interest balancing test exemption permitted by Government Code section 6255, in those rare circumstances when the County Counsel’s Office authorizes its use. As the County’s chief legal officer the County Counsel’s Office is best able to evaluate the competing public interests in disclosing records versus nondisclosure, while controlling the use of the exemption to ensure it is applied in a proper, consistent, and legal manner. CONSEQUENCE OF NEGATIVE ACTION: If the Better Government Ordinance is not amended the County’s ability to ensure that the public interest is adequately considered before records are released will remain hindered. ATTACHMENTS Clean Copy of Ordinance Redline Copy of Ordinance ORDINANCE NO. 2016-26 1 ORDINANCE NO. 2016-26 (Allowing Use of the Public-Interest Balancing Test Exemption under Certain Circumstances in Responding to Public Records Act Requests) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. SUMMARY. This ordinance amends Section 25-4.608 of the County Ordinance Code to authorize the consideration of competing public interests under Government Code section 6255 when responding to Public Records Act requests, following review and approval by the County Counsel’s Office. SECTION II. Section 25-4.608 of the County Ordinance Code is amended to read: Section 25-4.608 Justification of withholding. Any refusal to disclose a public record shall be justified in writing as follows: (a) A withholding under a permissive exemption in the California Public Records Act, this ordinance or other law shall cite that authority and explain in practical terms, citing one or more examples, as to how the public interest would be harmed by disclosure. (b) No records or information shall be withheld on the basis of the public interest balancing test in Government Code Section 6255 or by citing any case law application of that statute, without review and written approval from county counsel. (c) A withholding on the basis that disclosure is prohibited by law shall cite the statutory authority in the Public Records Act or elsewhere. (d) A withholding on the basis that disclosure would incur civil or criminal liability shall cite any statutory or case law, supporting that position. (Ords. 2016-26, § 2; 95-6). SECTION III. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage and within 15 days after passage shall be published once with the names of ORDINANCE NO. 2016-26 2 supervisors voting for and against it in the EAST BAY TIMES, a newspaper published in this county. PASSED on December 13, 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: David Twa, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Board Chair [SEAL] RJH H:\PRA, Subpoenas\6255\ 2016 Ordinance (1).doc ORDINANCE NO. 2016-26 1 ORDINANCE NO. 2016-26 (Allowing Use of the Public-Interest Balancing Test Exemption under Certain Circumstances in Responding to Public Records Act Requests) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code): SECTION I. SUMMARY. This ordinance amends Section 25-4.608 of the County Ordinance Code to authorize the consideration of competing public interests under Government Code section 6255 when responding to Public Records Act requests, following review and approval by the County Counsel’s Office. SECTION II. Section 25-4.608 of the County Ordinance Code is amended to read: Section 25-4.608 Justification of withholding. Any refusal to disclose a public record shall be justified in writing as follows: (a) A withholding under a permissive exemption in the California Public Records Act, this ordinance or other law shall cite that authority and explain in practical terms, citing one or more examples, as to how the public interest would be harmed by disclosure. (b) No records or information shall be withheld on the basis of the public interest balancing test in Government Code Section 6255, or by citing any case law application of that statute, without review and written approval from county counsel. (c) A withholding on the basis that disclosure is prohibited by law shall cite the statutory authority in the Public Records Act or elsewhere. (d) A withholding on the basis that disclosure would incur civil or criminal liability shall cite any statutory or case law, supporting that position. (Ords. 2016-26, § 2; 95-6). SECTION III. EFFECTIVE DATE. This ordinance becomes effective 30 days after passage and within 15 days after passage shall be published once with the names of ORDINANCE NO. 2016-26 2 supervisors voting for and against it in the EAST BAY TIMES, a newspaper published in this county. PASSED on December 13, 2016 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: David Twa, Clerk of the Board of Supervisors and County Administrator By: Deputy Clerk Board Chair [SEAL] RJH H:\PRA, Subpoenas\6255\ 2016 Ordinance (1).doc RECOMMENDATION(S): FIX a Public Hearing for December 20, 2016, at 9:00 a.m., in Room 107, at the Board of Supervisors’ Chambers, 651 Pine Street, Martinez, California, to consider updates of Underground Utility District No. 31, Willow Pass Rd./Bailey Rd., Bay Point Area, as recommended by the Public Works Director. DIRECT the Clerk of the Board to mail Notice of Hearing to the three additional property owners within the revised District in accordance with County Ordinance Code section 1008-2.004. FISCAL IMPACT: Installation of utilities within Bay Point Underground Utility District will be funded under the California Public Utilities Commission (CPUC) Rule 20A Program. Navy Mitigation Funds will be used for pre-construction project planning and engineering. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jon Suemnick, (925) 313-2263 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Jon Suemnick, 313-2263, Jerry Fahy, 313-2276, Mary Halle, 313-2327 C. 26 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:FIX a Public Hearing date to consider updates of Underground Utility District No. 31 BACKGROUND: On September 10, 2013, the Board of Supervisors adopted Resolution 2013/351 to form Underground Utility District No. 31 along Willow Pass Road/Bailey Road. Since that time, P.G.& E. has become aware of three additional power poles that should have been included within the boundary and recommends that the County modify the District No. 31 boundary to include three additional parcels and associated poles. This modification to the District No. 31 boundary will allow the entire area to be converted to underground service rather than allowing a few poles to remain. CONSEQUENCE OF NEGATIVE ACTION: Failure to fix the hearing date to consider revision of the Bay Point Underground Utility District will result in the Project being restricted to the original boundary. RECOMMENDATION(S): 1. FIX a public hearing for December 13, 2016, at 9:30 a.m., in Room 107, at the Board of Supervisor's Chambers, 651 Pine Street, Martinez, California, to consider adopting Resolution No. 2016/548 authorizing two minor lot line adjustments, and a Williamson Act contract rescission and approval on property owned by Ronald and Shirley Nunn in the Brentwood area. 2. DIRECT the Director of Conservation and Development, or his designee, to give notice of the hearing in accordance with Government Code sections 51232 and 51233. FISCAL IMPACT: None. All application fees are borne by the applicant. BACKGROUND: The adoption of Resolution No. 2016/548 will involve three actions: 1) Approving two minor Lot Line Adjustments (each affecting an area of about 0.8 acres); 2) rescinding existing Williamson Act Contract (AP 5-74); and 3) approving Williamson Act Contract (AP16-0002) over the newly configured parcel. Before these actions can be approved, the Board of Supervisors needs to hold a noticed public hearing. Prior to the public hearing a consent item on the Board's agenda must fix the hearing date in accordance with Government Code sections 51232 and 51233. The property is located at Walnut Blvd and Vasco Road in the Brentwood area. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: John Oborne, 925-674-7793 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 27 To:Board of Supervisors From:John Kopchik, Director, Conservation & Development Department Date:December 6, 2016 Contra Costa County Subject:Fix Hearing Date for Nunn Williamson Act Contract CONSEQUENCE OF NEGATIVE ACTION: If the Board does not fix a date for a hearing to consider the authorizing of two minor lot line adjustments, rescission of existing Williamson Act Contract (AP 5-74) and approval of Williamson Act Contract (AP 16-0002), the action will not be in accordance with Government Code 51232 and 51233. RECOMMENDATION(S): FIX a Public Hearing for December 20, 2016, at 9:00 a.m., in Room 107, at the Board of Supervisors' Chambers, 651 Pine Street, Martinez, California, to consider adoption of Ordinance No 2016-25 establishing transportation mitigation fees to be imposed on new development within the Alamo Area of Benefit, as recommended by the Public Works Director. (District II) DIRECT the Clerk of the Board to publish, and the Public Works Director, or designee, to post and mail the Notice of Public Hearing in accordance with Government Code Sections 6061, 65091, 54986, 66484, and Ordinance Code Section 913-6.014. FISCAL IMPACT: 100% Alamo Area Of Benefit fund, pursuant to Government Code section 66018, subdivision (b). BACKGROUND: The Countywide Area APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Mary Halle, (925) 313-2327 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Mary Halle, 925-313-2327, liza mangabay, 925-313-2232, Jerry Fahy, 313-2276 C. 28 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:FIX a Public Hearing date to consider adoption of Ordinance No. 2016-25 related to the Alamo Area of Benefit. (District II) BACKGROUND: (CONT'D) of Benefit was first adopted by the Board of Supervisors on March 15, 1988, to improve the capacity and safety of the arterial road network in unincorporated Contra Costa County through the establishment of a traffic mitigation fee. The Countywide Area of Benefit was initially divided into seven regions. In 1993, the Board created seven separate areas of benefit from the Countywide AOB regions. In 1998, an amendment was established to include the Alamo Area of Benefit. Transportation mitigation fees imposed on new development in the Alamo Area of Benefit were last updated in 1998, by the adoption of Ordinance No. 98-21. Since that time, the Alamo AOB fee revenues have funded construction projects that have mitigated traffic demands and have improved transportation safety of motorized and non-motorized users within the Alamo AOB. With recent changes to traffic patterns and development within the area, the circulation and transportation improvement needs for the area have changed. County staff and consultants have identified transportation improvements that are necessary to serve transportation demands within the Alamo AOB through 2040, including transportation demands attributable to new development. To ensure that new development pays its proportional share of the cost of these transportation improvements, the Board will need to hold a hearing to consider adopting an ordinance to adopt new transportation mitigation fees to be imposed on new development within the Alamo AOB. This board order fixes the hearing on December 20, 2016, at 9:00 a.m., and directs staff to publish, post, and provide notice of the hearing, as required by the applicable Government Code statutes and the applicable provisions of the Ordinance Code. CONSEQUENCE OF NEGATIVE ACTION: If a public hearing is not set, and notice is not given, as recommended, the Board could not adopt an ordinance to adjust the transportation mitigation fees imposed on new development within the Alamo AOB. Fees could continue to be imposed under Ordinance No. 98-21. However, fee revenue could not be used to pay the costs to construct the new transportation improvement projects that the Public Works Department has determined are needed to satisfy traffic demands from development within the Alamo AOB through 2040. RECOMMENDATION(S): APPOINT Lanita Mims to the District III-A seat on the Alcohol and Other Drugs Advisory Board to a term expiring June 30, 2019, as recommended by Supervisor Mary Nejedly Piepho. Lanita Mims Oakley, CA 94561 FISCAL IMPACT: None. BACKGROUND: The mission of the Contra Costa County Alcohol and Other Drugs Advisory Board is to assess family and community needs regarding treatment and prevention of alcohol and drug abuse problems. They report their findings and recommendations to the Contra Costa Health Services Department, the Board of Supervisors and the communities they serve. The District III-A seat on the Alcohol and Other Drugs Advisory Board was vacated by the Board of Supervisors on June 7, 2016. Applications were accepted and the recommendation to appoint the above individual was then determined. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lea Castleberry (925) 252-4500 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 29 To:Board of Supervisors From:Mary N. Piepho, District III Supervisor Date:December 6, 2016 Contra Costa County Subject:APPOINTMENT TO ALCOHOL AND OTHER DRUGS ADVISORY BOARD RECOMMENDATION(S): Supervisor Gioia wishes to appoint Robin Tanner to the Appointed Seat 2 of the El Sobrante Municipal Advisory Council, to a term ending on 12/31/2018. Robin Tanner El Sobrante, CA 94803 FISCAL IMPACT: None BACKGROUND: The El Sobrante Municipal Advisory Council shall advise the Board of Supervisors on: 1) Services which are or may be provided to unincorporated El Sobrante by the County or other local governmental agencies. Such services include, but are not limited to, public health, safety, welfare, public works, and planning, 2) the feasibility of organizing the existing special districts serving unincorporated El Sobrante in order to more efficiently provide public services such as, but not limited to, water, sewer, fire, and parks and recreation, 3) representing unincorporated El Sobrante before the Local Agency Formation Commission on proposed boundary changes affecting the community, 4) representing unincorporated El Sobrante before the County Planning Commission(s) and the Zoning Administrator on land use and other planning matters affecting the community. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: James Lyons, 510-231-8692 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 30 To:Board of Supervisors From:John Gioia, District I Supervisor Date:December 6, 2016 Contra Costa County Subject:APPOINT Robin Tanner to Appointed Seat 2 of the El Sobrante Municipal Advisory Council BACKGROUND: (CONT'D) In this regard, the Council shall cooperate with any other planning advisory bodies in unincorporated El Sobrante in order to avoid duplication and delay in the planning process, 5) Provide input and reports to the Board of Supervisors, County staff, or any other County hearing body on issues of concern to unincorporated El Sobrante, and 6) representing unincorporated El Sobrante before other public entities and agencies. It is understood that the Board of Supervisors is the final decision making authority with respect to issues concerning unincorporated El Sobrante and that the Council shall shall solely in an advisory capacity. Robin Tanner El Sobrante, CA 94803 Supervisor Gioia advertizes his open advisory body seats in numerous ways including through his website, eblasts, and newsletters, as well as with the traditional media. RECOMMENDATION(S): APPOINT the following individuals to the indicated Member-At-Large seats on the Advisory Council on Aging with terms expiring September 30, 2018: Member-At-Large #1 Fred Adams, resident of Walnut Creek Member-At-Large #7 Summer Selleck, resident of Martinez FISCAL IMPACT: None. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Enid Mendoza, (925) 335-1039 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 31 To:Board of Supervisors From:FAMILY & HUMAN SERVICES COMMITTEE Date:December 6, 2016 Contra Costa County Subject:Appointments to the Advisory Council on Aging BACKGROUND: On December 6, 2011 the Board of Supervisors adopted Resolution No. 2011/497 adopting policy governing appointments to boards, committees, and commissions that are advisory to the Board of Supervisors. Included in this resolution was the requirement that applications for at large/countywide seats be reviewed by a Board of Supervisors sub-committee. The recommendation to appoint both individuals was reviewed and approved by the Family and Human Services Committee on November 14, 2016. Staff to the Advisory Council on Aging (ACOA) recruited, interviewed and selected Mr. Fred Adams for the Member-At-Large #1 seat and Ms. Summer Selleck for the Member-At-Large #7 seat of this advisory body. ACOA approved both appointments at their October 19, 2016 meeting. CONSEQUENCE OF NEGATIVE ACTION: The seats will remain vacant, limiting the council's ability to secure full membership. CHILDREN'S IMPACT STATEMENT: ATTACHMENTS ACOA Memo and F.Adams Application ACOA Memo and S.Selleck Application 1 of 1 Kathy Gallagher, Director 40 Douglas Dr., Martinez, CA 94553  Phone: (925) 313-1579  Fax: (925) 313-1575  www.cccounty.us/ehsd. MEMORANDUM DATE: 10/25/2016 TO: Family and Human Services Committee CC: Victoria Tolbert, Director Aging and Adult Services FROM: Jaime Ray, Staff Representative for the Advisory Council on Aging SUBJECT: Advisory Council on Aging – Appointment Requested The Contra Costa Area Agency on Aging (AAA) recommends for immediate appointment to the Contra Costa Advisory Council on Aging (ACOA) the following applicant: Mr. Fred Adams for Member at Large Seat # 1. The MAL #1 seat is undesignated and has remained vacant since March 29, 2016. Recruitment has been handled by both the Area Agency on Aging, the ACOA and the Clerk of the Board using CCTV. AAA staff has encouraged interested individuals including minorities to apply through announcements provided at the Senior Coalition meetings and at the regular monthly meetings of the ACOA. The Contra Costa County EHSD website contains dedicated web content where interested members of the public are encouraged to apply and are provided an application with instructions on whom to contact for ACOA related inquiries, including application procedure. Mr. Adams was interviewed by the ACOA Membership Committee on 8/17/2016 to fill MAL #1 on the ACOA with term ending 9/30/2017. Mr. Adams submitted an application for ACOA membership dated 6/12/2016 that is provided as a separate attachment. At the time of his ACOA Membership Committee selection to fill one of two At Large vacancies there was one other applicant; the ACOA voted to approve Mr. Adams appointment recommendation at their 10/19/16 meeting. Thank You Contra Costa County BOARDS,COMMITIEES,AND COMMISSIONS APPUCATION , $I ,"", 3 ....~,_' (Home No.)(Wolk No.)(c.II No.) 4. Email Addnru : 5.EDUCATION 'ChecIc approp n.le boK Nyou possess one 0#the IoIIowWlg: ~h School ~[J G,E,O.CertiflC8 le [J Californ ia High School Proflciency Certillcale 0 Give Highe8I Gfadeor EOucaIional Lewl AdIiIMId &1'4 01 Sc7 tnGt...... '" ...-d coaeo-I..-_ "'""" THIS FORM IS A PUBUC OOC\JM£NT 6. PLEASEFILL OUT THE FOLLOWINGSECTIONCOMPLETELY.List experience that relates to the qualifications needed to serve on the local appointive body.Begin with your most recent experience.A resume or other supporting documentation may be attached but It may not be used as a substitute for completing this section. A) Dates (Month, Day, Year) From ejlg To f(l~ Total: Yrs. Mos. Hrs. per week__. Volunteer ~ li ..l, B) Dates (Month, Day, Year) From /)C>t<1 To :6J~D6/, C(61IVu) Total: Yrs.Mos.t (, Hrs. per week 40 .Volunteer [] C)Dates (Month, Day, Year) From To Total: Yrs. Mos. Hrs. per week__. Volunteer CI D) Dates (Month, Day, Year) From To Total: Yrs. Mos. Hrs. per week__.Volunteer [] Title Employer's Name and Address Kc 1.14'(c"I11 C vteYI!<, t/<;/)(fO C.If ~f)W1i,Def1 Title Employer's Name and Address Title Employer's Name and Address THIS FORM ISA PUBUC DOCUMENT Duties Perfonned -D1Vtc{pi eve:enI M~QjJ4Jj;~-1' --5'1«tJiit fr;01-1 Sf 40 --.;dcI 1/1;~5 ..L~r-eh~.s;1J'f INllfh T]\)VJ.I~.Jt;:vv'~ Duties Perfonned Duties Perfonned 7. How did you learn about this vacancy? Dccc HomepageDWalk-ln DNewspaper Advertisement DDlstrict Supervisorl40ther 8 .Do you have a Familial or Financial Rela!!2.Pship with a member of the Board of Supervisors?(Please see Board Resolution no.2011155 ,attached):No....DL-Yes--'='- If Yes, please Identify the nature of the relationship:_ I CERTIFY that the statements made by me In this application are true,complete,and correct to the best of my knowledge and belief, and are made In good faith.I acknowledge and understand that all Information In this application 18 publlcally accessible.I understand and agree that misstatements I omissions of material fact may cause forfeiture of my rights to serve on a Board,Committee,or Commission In Contra Costa County. Date:---=-r-~-1r......1~----- Important Infonnation 1.Thisaw!"K:aOOn is a ptbIic OOctmentClld is ~to the Caifcmia Pubt;Reoords Pd.(CAGoJ.COOe §62s0a270). 2.Send the completed paperSR*aliOO to the Olb dthe Clerk d the 80EId at:651 Pile Sb8et,Room 106,Martin&z,CA94653. 3. A n!lslIT'Ie a olherreleYant inbmaIi:lnmaybe SlbnilIed wilhthis appIi3Dn. 4.All membef's ererequieclto takethe folbNi1g traini1g:1)The BroNn Id.2)The Better GcMmnent Ordi 1aI1re.a1d 3)EthK:s Training. 5.Members dboards.cxmnissions,a1dexmniltees maybe recJ,Iied tl:1)fie a Slalement d EalnomicInterest Fam also known as a Fam 700,CIld 2)a:mpIefe the stale EIhi:sTrai1i1g Course as Ie(JJied by AS 1234. 6.Adviscxy body meetings maybe heldi1 various IocatD IS and sane IocatD IS mayrid be accessi:lIe by pubrc tJa lSJ)OI1aIia L 7.Meeting dates andtines ae suqed tl ct1aI'lJe and mayoccur l4J to twodayspermonIh. 8.Sane boards,<D'TlI'TlilEes,ac:xmnissia1s mayassigl merrtJers to SlixDnmiUees a'MJ'k ~wtOCh mayrequie CI1cDjjOOnaJ cxmniIrnent d tine. THIS FORM ISA PUBUC DOCUMENT 1 of 1 Kathy Gallagher, Director 40 Douglas Dr., Martinez, CA 94553  Phone: (925) 313-1579  Fax: (925) 313-1575  www.cccounty.us/ehsd. MEMORANDUM DATE: 10/25/2016 TO: Family and Human Services Committee CC: Victoria Tolbert, Director Aging and Adult Services FROM: Jaime Ray, Staff Representative for the Advisory Council on Aging SUBJECT: Advisory Council on Aging – Appointment Requested The Contra Costa Area Agency on Aging (AAA) recommends for immediate appointment to the Contra Costa Advisory Council on Aging (ACOA) the following applicant: Ms. Summer Selleck for Member at Large Seat # 7. The MAL #7 seat is undesignated and has remained vacant since August 16, 2016. Recruitment has been handled by both the Area Agency on Aging, the ACOA and the Clerk of the Board using CCTV. AAA staff has encouraged interested individuals including minorities to apply through announcements provided at the Senior Coalition meetings and at the regular monthly meetings of the ACOA. The Contra Costa County EHSD website contains dedicated web content where interested members of the public are encouraged to apply and are provided an application with instructions on whom to contact for ACOA related inquiries, including application procedure. Ms. Selleck was interviewed by the ACOA Membership Committee on 9/21/2016 to fill MAL #7 on the ACOA with term ending 9/30/2017. Ms. Selleck submitted an application for ACOA membership dated 6/28/2016 that is provided as a separate attachment. At the time of her ACOA Membership Committee selection to fill one of two At Large vacancies there was one other applicant; the ACOA voted to approve Ms. Selleck appointment recommendation at their 10/19/16 meeting. Thank You Print Form Contra Costa County JUN 2 0 7.016 CLERK B0AR!l OFSUPERVlOORl$ CONTAACOSTAOO , For Reviewers Use Only: Accepted Rejected BOARDS,COMMITTEES,AND COMMISSIONS APPLICATION MAIL OR DELIVER TO: Contra CostaCounty CLERK OFTHEBOARD 651 PineS1reet,Rm.106 lltartinez,Califomia 94553-1292 PLEASETYPEORPRINTININK (EachPosition Requires a SeparateApplication) BOARD,COMMlmE OR COMMISSION NAMEANDSEAT TITLE YOU ARE APPLYING FOR: .!AdViSOry Counsilon Aging I IAD_-a....;:rg;;..e _ PRINT EXACT NAME OF BOARD,COMMITIEE,OR COMMISSION PRINT EXACT SEAT NAME (if applicable) Cyd :=-J. (Middle Name) 1.Name:EelleCI<.Summer (Last Name)(First Name) 2.Address: (No.)(Street)(Apt.)(City)(State) :=-J (Zip Code) (CI~1I No.) 3.Phones:!:::::::==~::====:::=::::=:::=::=:=:==:========:=:~=:==::============!(Home No.)(Work No.) 4.Email Address:~u m 5 .EDUCATION :Check appropriate box if you possess one of the following: High School Diploma [J G.E.D.Certificate CI California High School Proficiency Certificate [J Give Highest Grade or Educational Level AChievedHuris Doctorate ,---l fCLA rB t pp ~d ~e .••......_ c>restern StateCollegeof Law [l)Other schools -i trafning . I completed : i I THIS FORM ISA PUBLIC DOCUMENT /\ 6. PLEASE FILL OUT THE FOLLOWING SECTION COMPLETELY.List experience that relates to the qualifications needed to serve on the local appointive body.Begin with your most recent experience.A resume or other supporting documentation may be attached but it may not be used as a substitute for completing this section. A) Dates (Month, Day, Year)Title Duties Performed From To IsoleProprietor ~Legal 16/4/2013 Ir-.Employer's Name and Address Total: Yrs .Mos.SC Selleck Law LJD 150 N.Wiget Lane,#105 Walnut Creek,CA 94598 HI'S.per week.E].Volunteer CI -B) Dates (Month ,Day, Year)Title Duties Performed From To \Board Memeber ILegislativeCommittee ,Membership I 112/0120141 ~Committee, Amicus BriefCommittee, Etc. Employer's Name and Addr~!ss DO CaliforniaWomen Lawyers 700 RStreet Suite 200 HI'S.per weeD .Volunteer [] acramento ,CA 95811 C)Dates (Month ,Day ,Year)Title Duties Performed From To Boardof Directors ~ 112/01/20151 ~Employer's Name and Address Total: Yrs. Mos.ContraCosta County Boardof Directors geQluntee,c 2300 Clayton Rd . Suite 520 Concord,CA 94520 D) Dates (Month, Day, Year)Title Duties Performed From To I ~CJCJ Employer's Name and Address Total: Yrs .Mos. gQlunteerc - TH~FORMISAPUBUCDOCUMENT 7. How did you learn about this vacancy? DGCC HomepageDWalk-ln [JNewspaper Advertisement C1District Supervisor 1EI0ther )candiceAndersen ]I 8. D.) you have a Familial or Financial Relationship with a member of t he Board of Supervisors?(Please see Board Resolution no .2011/55 ,attached):No ---.IEL_Yes---.O- If Yes ,please identify the nature of the relationship:C I. 9.0 1)you have any financial relationships with the County such as grants,contracts,or other economic relations? No --lEI..-Yes----CI- If Yes,please identify the nature of the relati onship :I :=l Sign Name :----Date :--::::...--+--=------,J---'---''------ I CERTIFY that the statements made by me in this application are true ,complete ,and correct to the best of my knowledge and belief,and are made in ood faith.I acknowledge and understand that all information in this application is publically acce·ssible.I under and and agree that misstatements 1omissions o t'material fact may cause forfeiture of my rights to serve on a Board,Com ttee ,or C issio in ntra Costa County . Important Information 1.This application isa public document andis subject to the California Public Records Ad.(CAGov.Code §625Q.6270). 2.Send thecompleted paperapplication to theOffice ofthe CIer1<of the Board at:651 PineStreet,Room 106,Martinez,CA 94553. 3. A resume or other relevant information maybe submitted with thisapplication . 4. All members are required totakethefollowing training:1)The Brown Ad.,2)The Better Govemment Ordinance,and3)Ethics Training. 5.Members of boards,commissions,andcommittees maybe required to:1)filE!a Statement of Economic Interest Form also knOlJVl1 asa Form 700,and2)complete the State Ethics Training Course as required by AS 1234. 6.Advisory lxxly meetings maybe held invarious locations andsomelocations maynotbe accessible by public transportation . 7.Meeting dates andtimes are subject tochange andmayoccur up totwo days per month . 8.Someboards,committees,or commissions mayassign members to subcommittees or work groups which mayrequire an addtonal commitment of time. THIS FORM IS A PUBLIC DOCUMENT Summer C.Selleck EDUCATION Western State University,College of law-Fullerton,C<\ J.D.,December 2012 CA State Bar Number:290247 Pepperdine University School of Education-Malibu,CA M.A.in Education,Suma Cum Laude, July 2011 University of California,Los Angeles-Westwood,CA B.A.in History,Cum Laude, June 2007 EXPERIENCE SC Selleck Law-Concord,CA Sole Proprietor (zoty-present) •Research and draft memoranda and pleadings for civil and criminal litigation . •Practice Estate Planning,Probate and Criminal Law. •Manage client relationships,including explaining legal rights and identifying goals. •Draft deeds,wills,trusts and contracts. Rainbow Community Center-Concord,CA Community Development Liaison (2013-2 ,015) •Coordinate,plan and lead a variety of informational meetings,events and activities targeted at community involvement and relationship building for the LGBTQ community. The Law Office of Ora S.Prochovnick-Pleasant Hill,CA Law Clerk (2012-2015) •Prepared memoranda and pleadings for family law hearings and litigation. o Drafted and ed ited estate planning documents. •Managed client correspondence •Drafted application for recognition of exemption under section 501(C)(3)of the Internal Revenue Code PROFESSIONAL AFFIUTAIONS Contra Costa County Bar Association Board of Directors (2016-Present) California Women Lawyers, Co-Affiliate Governor -CCCBA Women's Section (Jan.zoiy-Present) Contra Costa County Bar Association,Women's Section,Member-at-Large (Jan.zoia-Present) Contra Costa County Bar Association,Barrister's Section,V.P.&MCLE Coordinator (Jan.2014-2016) Contra Costa County Bar Association ,Diversity Committee,Board Member (June 2013-Present) RECOMMENDATION(S): ACCEPT the resignation from the following person from the District II-A Seat of the Alcohol and Other Drugs Advisory Board of Contra Costa County effective immediately, as recommended by Supervisor Candace Andersen: Hayden Padgett Danville, CA 94506 DECLARE a vacancy of the District II-A Seat on the Alcohol and Other Drugs Advisory Board of Contra Costa County, and DIRECT the Clerk of the Board to post the vacancy. FISCAL IMPACT: None. BACKGROUND: The mission of the Contra Costa County Alcohol and Other Drugs Advisory Board is to assess family and community needs regarding treatment and prevention of alcohol and drug abuse problems. They report their findings and recommendations to the Contra Costa Health Services Department, the Board of Supervisors, and the communities they serve. The Alcohol and Other Drugs Advisory Board works in collaboration with the Alcohol and Other Drugs Services Division of Contra Costa Health Services. They provide input and recommendations as they pertain to alcohol and other drugs prevention, intervention, and treatment services. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jill Ray, 925-957-8860 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: District 2 Supervisor, AOD Advisory Board, Maddy Book, Appointee C. 32 To:Board of Supervisors From:Candace Andersen, District II Supervisor Date:December 6, 2016 Contra Costa County Subject:RESIGNATION FROM THE ALCOHOL AND OTHER DRUGS ADVISORY BOARD OF CONTRA COSTA COUNTY CONSEQUENCE OF NEGATIVE ACTION: The District II-A Seat will remain filled without the benefit of the appointee in attendance. RECOMMENDATION(S): ACCEPT the resignation from the following person from the District II Seat of the Contra Costa Commission for Women effective November 30, 2016, as recommended by Supervisor Candace Andersen: Stacey Howard Danville, CA 94526 DECLARE a vacancy of the District II Seat of the Contra Costa Commission for Women, and DIRECT the Clerk of the Board to post the vacancy. FISCAL IMPACT: None. BACKGROUND: The Commission for Women was established to identify major economic, educational, and social concerns of women in Contra Costa County, and to reach and inform all women on a variety of issues. The Commission consists of 26 members: one member from each Supervisorial District, 20 At Large members, and 1 Alternate At Large member. The IO Committee reviews nominations to the 20 At Large seats and their Alternate. Terms for all Commission seats are three years. CONSEQUENCE OF NEGATIVE ACTION: The District II Seat will remain filled without the benefit of the appointee in attendance. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jill Ray, 925-957-8860 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: District 2 Supervisor, Maddy Book, Commission for Women C. 33 To:Board of Supervisors From:Candace Andersen, District II Supervisor Date:December 6, 2016 Contra Costa County Subject:RESIGNATION FROM THE CONTRA COSTA COMMISSION FOR WOMEN RECOMMENDATION(S): ACCEPT the resignation from the following person from the District II Seat of the Arts & Culture Commission of Contra Costa County effective immediately, and DIRECT the Clerk of the Board to post the vacancy, as recommended by Supervisor Candace Andersen: Lore Konieczny Lafayette, CA 94549 FISCAL IMPACT: None. BACKGROUND: The Arts and Culture Commission advises the Board of Supervisors in matters and issues relevant to Arts and Culture, to advance the arts in a way that promotes communication, education, appreciation and collaboration throughout Contra Costa County; to preserve, celebrate, and share the arts and culture of the many diverse ethnic groups who live in Contra Costa County; to create partnerships with business and government; to increase communications and understanding between all citizens through art. Most importantly, the Commission will promote arts and culture as a vital element in the quality of life for all of the citizens of Contra Costa County. CONSEQUENCE OF NEGATIVE ACTION: The District II Seat will remain filled without the benefit of the appointee in attendance. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jill Ray, 925-957-8860 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: District 2 Supervisor, Arts & Culture Commission, Maddy Book, Appointee C. 34 To:Board of Supervisors From:Candace Andersen, District II Supervisor Date:December 6, 2016 Contra Costa County Subject:RESIGNATION FROM THE ARTS AND CULTURE COMMISSION OF CONTRA COSTA COUNTY RECOMMENDATION(S): ACCEPT the resignation of the following person from the District II Seat of the Contra Costa County Merit Board effective immediately, as recommended by Supervisor Candace Andersen: effective immediately, as recommended by Supervisor Candace Andersen: Frank Robertson Antioch, CA 94531 DECLARE a vacancy of the District II Seat on the Contra Costa County Merit Board, and DIRECT the Clerk of the Board to post the vacancy. FISCAL IMPACT: None. BACKGROUND: The Contra Costa County Merit Board consists of five (5) residents of Contra Costa County who are neither County or District employees nor employees of any organization representing County or District employees. Merit Board members shall be appointed by the Board of Supervisors. They are given the following powers and duties: • The Merit Board shall hear and make final determinations on: appeals from orders and actions of dismissal; suspension; or reduction in rank or compensation unless alternative jurisdiction APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jill Ray, 925-957-8860 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: District 2 Supervisor, Maddy Book, Merit Board, Appointee C. 35 To:Board of Supervisors From:Candace Andersen, District II Supervisor Date:December 6, 2016 Contra Costa County Subject:RESIGNATION FROM THE CONTRA COSTA COUNTY MERIT BOARD BACKGROUND: (CONT'D) is conferred by the board of supervisors. When it is given such jurisdiction by the Board of Supervisors, it may decide discrimination complaints and other matters. • It shall hear and make recommended determinations on other matters, when it is given jurisdiction of such matters by the Board of Supervisors. • The Merit Board as a whole shall monitor the operation of the County Personnel Management System including the Merit System and report its recommendations from time to time to the Board of Supervisors. CONSEQUENCE OF NEGATIVE ACTION: The District II Seat will remain filled without the benefit of the appointee in attendance. RECOMMENDATION(S): APPOINT Anthony Rodigin, MD, to the Emergency Medical Care Committee (EMCC) seat C4 - Emergency Department Physicians from a Contra Costa County Receiving Hospital, as recommended by Dr. William Walker, with a term expiration date of September 30, 2018: Emergency Department Physicians Representative: Anthony Rodigin, MD, Sutter Delta Medical Center, Dept. of Emergency Medicine, 3901 Lone Tree Way, Antioch, CA 94509 FISCAL IMPACT: No fiscal impact. BACKGROUND: The EMCC is a multidisciplinary committee appointed by the County Board of Supervisors, to provide advice and recommendations on EMS-related matters to the Board, Health Services Director and its EMS Agency. Membership consists of consumer representatives, and representatives of EMS-related organizations and groups. For the new EMCC two-year membership term 2016-2018, Anthony Rodigin, MD, was nominated by Dr. William Walker to this seat. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Pat Frost, 925-646-4690 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm, Leticia Andreas C. 36 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Appointment to the Emergency Medical Care Committee CONSEQUENCE OF NEGATIVE ACTION: If this Board Order is not approved, this position on the EMCC will not be filled. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPOINT Jason Wallace to the Emergency Medical Care Committee (EMCC) seat B3 - American Red Cross, as recommended by Dr. William Walker, with a term expiration date of September 30, 2018: American Red Cross Representative: Jason Wallace, 1300 Alberta Way, Concord, CA 94521 FISCAL IMPACT: No fiscal impact. BACKGROUND: The EMCC is a multidisciplinary committee appointed by the County Board of Supervisors, to provide advice and recommendations on EMS-related matters to the Board, Health Services Director and its EMS Agency. Membership consists of consumer representatives, and representatives of EMS-related organizations and groups. For the new EMCC two-year membership term 2016-2018, Jason Wallace was nominated by Olga Crowe, Senior Disaster Program Manager for the American Red Cross Northern California Region, to this seat. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Pat Frost, 925-646-4690 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm, Leticia Andreas C. 37 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Appointment to the Emergency Medical Care Committee CONSEQUENCE OF NEGATIVE ACTION: If this Board Order is not approved, this position on the EMCC will not be filled. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE Appropriation and Revenue adjustment No. 5027 authorizing new revenue in the amount of $12,500 from Bay Alarm in the Sheriff's Law Enforcement Training Center (0258) and appropriate it for use as scholarship funds for Deputy Sheriff recruits. FISCAL IMPACT: $12,500 increase in revenue and expenditures. No net County cost. BACKGROUND: Bay Alarm provides scholarship funding in an effort to promote the education and training of local law enforcement recruits and officers. The scholarship funding allows the Office of the Sheriff's Law Enforcement Training Center to issue a number of scholarships to non-affiliated recruits of the Academy. CONSEQUENCE OF NEGATIVE ACTION: The donation revenue will not be appropriated for use in the LETC budget for fiscal year 2016/17. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Liz Arbuckle, 925-335-1529 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Liz Arbuckle, Heike Anderson, Tim Ewell C. 38 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Appropriation Adjustment - Bay Alarm Company Scholarship CHILDREN'S IMPACT STATEMENT: No impact. ATTACHMENTS Appropriation and Revenue Adjustment No. 5027 RECOMMENDATION(S): APPROVE Appropriation and Revenue Adjustment No. 5028 authorizing an adjustment in revenue for the Sheriff's Office (0255) in the amount of $849,244 and adjusting appropriations to agree with Remote Access Network (RAN) Board approved budget for FY 2016-17. FISCAL IMPACT: This action decreases revenue and appropriations by $849,244. There is no change in net county cost. BACKGROUND: The Cal-ID network is composed of independent Automated Fingerprint Identification Systems (AFIS) and dedicated California Department of Justice (DOJ) workstations throughout the State. In 1987, Contra Costa and Alameda Counties formed a Regional Access Network (RAN) Board to qualify for funding from the DOJ to implement AFIS. Over the years, the scope of AFIS has expanded to include LiveScan technology and the collection of both fingerprints and palm prints. This appropriation adjustment will bring the budget in the County Finance System in line with the RAN Board approved budget for FY 16-17. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Liz Arbuckle (925) 335-1529 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 39 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Cal ID Appropriation Adjustment CONSEQUENCE OF NEGATIVE ACTION: The Sheriff's Office budget will not reflect anticipated expenditure and revenue activity for fiscal year 2016/17. CHILDREN'S IMPACT STATEMENT: No impact. ATTACHMENTS Appropriations and Revenue Adjustment No. 5028 RECOMMENDATION(S): Employment and Human Services (0502): APPROVE Appropriation and Revenue Adjustment No. 5029 authorizing an adjustment to the Federal, State and County expenditure and revenue budgets based on revised caseload projections for the following Assistance programs: Foster Care, KinGAP, Emergency Assistance Foster Care, and Adoptions Assistance. FISCAL IMPACT: This action will adjust both the expenditure and revenue budgets to more accurately reflect adjustments in caseload projections for FY 16/17. The net effect is an increase to both revenues and expenditures of $578,053. The increased county share of $306,707 is included as part of the $578,053 net adjustment and is being covered with local revenue. BACKGROUND: Assistance expenditures and revenue are anticipated to increase in Foster Care, KinGAP, Emergency Assistance Foster Care, and anticipated to decrease in Adoptions Assistance. CONSEQUENCE OF NEGATIVE ACTION: Appropriations will not be properly allocated. CHILDREN'S IMPACT STATEMENT: Not applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Erik Brown, 925-313-1561 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 40 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Appropriation Adjustment for Children & Family Services Client Assistance ATTACHMENTS TC 24/27 No. 5029 RECOMMENDATION(S): Employment and Human Services Departments (0501, 0502, 0504): APPROVE Appropriation and Revenue Adjustment No. 5032 authorizing an adjustment to the Federal, State and County expenditure and revenue budgets based on revised contract expenditures, for the following County Expense Claim Administrative Programs or Client Assistance Programs: Substance Abuse/HIV, Child Abuse Prevention, Intervention and Treatment, Child Welfare Services, State Family Preservation, Licensing, Promoting Safe & Stable Families, Foster Parent Training and Recruitment, and Transitional Housing Program Plus. Also to re-distribute contract funding between EHSD departments to more accurately reflect the management of these contracts. FISCAL IMPACT: This action will adjust both the expenditure and revenue budgets to more accurately reflect contracted expenditures for FY 16/17. The net effect is an increase to both revenues and expenditures of $3,345,159. The increased county share of $295,978 is included as part of the $3,345,159 net adjustment and is being covered by local revenue. BACKGROUND: Contracted expenditures and revenues are anticipated to increase due to the Continuum of Care Reform (CCR) that will also impact services provided through other Child Welfare programs. There are additional adjustments to reflect the re-distribution of contracts previously funded by Keller Canyon revenue. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: EHSD, 925-313-1651 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 41 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Appropriation Adjustment for Employment and Human Services Contracted Services CONSEQUENCE OF NEGATIVE ACTION: Appropriations will not be properly allocated. CHILDREN'S IMPACT STATEMENT: Not applicable. ATTACHMENTS TC 24/27 No. 5032 RECOMMENDATION(S): ADOPT Position Adjustment Resolution No. 21992 to add one (1) Computer Operator I (LK7A) (represented) position at salary plan and grade TB5 1169 ($3,683 - $4,060) in the Operations Division of the Department of Information Technology. FISCAL IMPACT: The maximum cumulative annual impact is $81,770. The cost of this position is already covered under the existing FY 16/17 budget (vacancy savings). DoIT charges for all services and these charges include revenue generated from non-general fund departments and other public agencies. These costs will be 100% offset from charges to user departments. BACKGROUND: The Operations Division is unable to adequately support the mainframe system with the current staffing level of six members in the unit. The mainframe system supports the Payroll, Budget, Finance, Courts, Cal Win, Public Works, Assessor, Human Resources, Retirement, and Tax Collector systems. Each of these systems are critical to the organization and any type of system outage will have major financial and operational impact to County Departments and the County as a whole. The Operations Division is a nineteen hour operation, therefore, a staffing shortage can put APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ed, Woo CIO, 925-383-2688 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Ed Woo C. 42 To:Board of Supervisors From:Ed Woo, Chief Information Officer Date:December 6, 2016 Contra Costa County Subject:Add one Computer Operator I position BACKGROUND: (CONT'D) the entire operation at risk. The addition of a Computer Operator I position to the unit will ensure that customer requirements are met, service level agreements are achieved, and DOIT will have flexibility in staff coverage. CONSEQUENCE OF NEGATIVE ACTION: If this request is not approved, the Operations Division will not be able to perform the daily processing which will have a severe negative impact to all County Departments. ATTACHMENTS P300 21992_Add Comp Operator I Position in DoIT POSITION ADJUSTMENT REQUEST NO. 21992 DATE 11/3/2016 Department No./ Department Department of Information Technology Budget Unit No. 0147 Org No. 1060 Agency No. A03 Action Requested: Add one Computer Operator I (LK7A) (represented) position in the Operations Division of the Department of Information Technology. Proposed Effective Date: 12/1/2016 Classification Questionnaire attached: Yes No / Cost is within Department’s budget: Yes No Total One-Time Costs (non-salary) associated with request: $0.00 Estimated total cost adjustment (salary / benefits / one time): Total annual cost $81,770.00 Net County Cost $0.00 Total this FY $47,699.00 N.C.C. this FY $0.00 SOURCE OF FUNDING TO OFFSET ADJUSTMENT Vacancy Savings in DoIT's budget will fund this position. Department must initiate necessary adjustment and submit to CAO. Use additional sheet for further explanations or comments. Ed Woo ______________________________________ (for) Department Head REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT /s/ Julie DiMaggio Enea 11/3/16 ___________________________________ ________________ Deputy County Administrator Date HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE 11/18/2016 Add one Computer Operator I (LK7A) (represented) at salary plan and grade TB5 1169 ($3,683 - $4,060) in the Operations Division of the Department of Information Technology. Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule. Effective: Day following Board Action. 12/1/2016(Date) Fina Prak 11/18/2016 ___________________________________ ________________ (for) Director of Human Resources Date COUNTY ADMINISTRATOR RECOMMENDATION: DATE 11/30/16 Approve Recommendation of Director of Human Resources Disapprove Recommendation of Director of Human Resources /s/ Julie DiMaggio Enea Other: ____________________________________________ ___________________________________ (for) County Administrator BOARD OF SUPERVISORS ACTION: David J. Twa, Clerk of the Board of Supervisors Adjustment is APPROVED DISAPPROVED and County Administrator DATE BY APPROVAL OF THIS ADJUSTMENT CONSTITUTES A PERSONNEL / SALARY RESOLUTION AMENDMENT POSITION ADJUSTMENT ACTION TO BE COMPLETED BY HUMAN RESOURCES DEPARTMENT FOLLOWING BOARD ACTION Adjust class(es) / position(s) as follows: P300 (M347) Rev 3/15/01 REQUEST FOR PROJECT POSITIONS Department Date 11/30/2016 No. 1. Project Positions Requested: 2. Explain Specific Duties of Position(s) 3. Name / Purpose of Project and Funding Source (do not use acronyms i.e. SB40 Project or SDSS Funds) 4. Duration of the Project: Start Date End Date Is funding for a specified period of time (i.e. 2 years) or on a year -to-year basis? Please explain. 5. Project Annual Cost a. Salary & Benefits Costs: b. Support Costs: (services, supplies, equipment, etc.) c. Less revenue or expenditure: d. Net cost to General or other fund: 6. Briefly explain the consequences of not filling the project position(s) in terms of: a. potential future costs d. political implications b. legal implications e. organizational implications c. financial implications 7. Briefly describe the alternative approaches to delivering the services which you have considered. Indicate why these alternatives were not chosen. 8. Departments requesting new project positions must submit an updated cost benefit analysis of each project position at the halfway point of the project duration. This report is to be submitted to the Human Resource s Department, which will forward the report to the Board of Supervisors. Indicate the date that your cost / benefit analysis will be submitted 9. How will the project position(s) be filled? a. Competitive examination(s) b. Existing employment list(s) Which one(s)? c. Direct appointment of: 1. Merit System employee who will be placed on leave from current job 2. Non-County employee Provide a justification if filling position(s) by C1 or C2 USE ADDITIONAL PAPER IF NECESSARY RECOMMENDATION(S): APPROVE and AUTHORIZE the Chief Information Officer, or designee, to execute a contract with the City of Richmond to pay the County at a rate of $128 per hour for the County Department of Information Technology to provide radio communication maintenance services to the Richmond Police Department, for the period July 1, 2016 through June 30, 2017. FISCAL IMPACT: The contract will generate revenue for DoIT's Telecommunications division. BACKGROUND: Upon the Richmond Police Department's request, the County Department of Information Technology will provide radio programming services for the Police Department radio equipment and service dispatch consoles at the rate of $128 per hour, plus the cost of any materials and required equipment. CONSEQUENCE OF NEGATIVE ACTION: Reduced revenue for the radio division, which could increase labor costs. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ed Woo (925) 383-2688 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 43 To:Board of Supervisors From:Ed Woo, Chief Information Officer Date:December 6, 2016 Contra Costa County Subject:Richmond Police Department Contract RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with the City and County of San Francisco, including full indemnification of the City and County of San Francisco, to pay the County an amount not to exceed $504,229 as part of the 2016 U.S. Department of Homeland Security, Urban Area Security Initiative (UASI) Grant for homeland security related projects within the County for the period November 1, 2016 through the end of the grant funding. (100% Federal) FISCAL IMPACT: No County Costs. $504,229; 100% 2016 Urban Area Security Initiative Grant from the City and County of San Francisco acting as fiscal agent for the Bay Area Urban Area Security Initiative. (CFDA # 97.067) BACKGROUND: The U.S. Department of Homeland Security Urban Area Security Initiative Grant Program funds address the unique planning, equipment, training, and exercise needs of high threat, high density urban areas. This grant assists designated regions in building an enhanced and sustainable capacity to prevent, protect against, respond to, and recover from acts of terrorism. California APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Mary Jane Robb, 925-335-1557 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 44 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:2016 Urban Area Security Initiative Grant BACKGROUND: (CONT'D) is home to five of these urban areas and the U.S. Department of Homeland Security designated the City and County of San Francisco as the fiscal agent for the Bay Area Urban Area Security Initiative (UASI). The County, as a member of the Bay Area UASI, will receive $504,229.00 to add downlink receivers to enhance the existing airborne digital downlink system, acquire rescue gear and training for the County’s helicopter rescue program, and build the County’s and the East Bay Hubs risk management coordination with the Northern California Fusion Center. As the fiscal agent for the grant, the City and County of San Francisco has developed a standard form contract for use with all Bay Area UASI partner agencies requiring full indemnification of the City and County of San Francisco. The County has agreed to previous inter-agency agreements with the City and County of San Francisco, which contained the same language, to participate in regional homeland security efforts and access important Federal funding. CONSEQUENCE OF NEGATIVE ACTION: Should the Board decide not to approve entering into this agreement, the County will not receive its share of the 2016 UASI Grant funds and the airborne downlink receivers; East Bay Hub Operational Areas; risk management and planning to increase regional response capability will need to be either funded through another source or not performed. CHILDREN'S IMPACT STATEMENT: No impact. RECOMMENDATION(S): ADOPT Resolution No. 2016/659 approving and authorizing the County Probation Officer, or designee, to apply for and accept funding under the Juvenile Accountability Block Grant (JABG) Evidenced- Based Training Project grant from the Board of State and Community Corrections (BSCC) in the amount not to exceed $19,995 to enhance Cognitive Behavioral Treatment services for youth on probation for the period November 1, 2016 through February 28, 2018. FISCAL IMPACT: This state grant is for $19,995 for a period 16 months and requires a 10% county match from the County Probation Department. BACKGROUND: The BSCC is the Designated State Administrative Agency for the following two federal juvenile justice funding sources: Title II Formula Grant Program and the Juvenile Accountability Block Grant Program (JABG). The State Advisory Committee on Juvenile Justice and Delinquency Prevention (SACJJDP) aligned these programs to support California’s Title II Three-Year plan. The plan outlines three priority areas: Reducing Racial and Ethnic Disparity (R.E.D.); EBP; and strategies to support positive outcomes for youth, their families, and communities. The legislative APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: James Rivers (925) 957-2712 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 45 To:Board of Supervisors From:Todd Billeci, County Probation Officer Date:December 6, 2016 Contra Costa County Subject:Appove and Authorize the reciept of grant funding BACKGROUND: (CONT'D) mandates associated with the BSCC also direct the Board to support statewide efforts in implementing evidence-based practices. On April 22, 2013 to support the Three-Year plan, the SACJJDP approved $250,000 in discretionary JABG funds (CDFA 16.523) to develop the EBP priority area. In May 2014, the BSCC Board authorized the establishment of an Executive Steering Committee (ESC) to oversee the development of a Request for Application (RFA) process to identify probation departments that were prepared to receive training that would assist them in implementing or expanding the use of evidence-based practices within their local juvenile justice communities. This competitive process resulted in grant awards to nine projects which began on May 1, 2015 and concluded on June 30, 2016. On June 9, 2016 the BSCC Board approved a recommendation from the SACJJDP that approximately $190,000 in additional JABG funding be extended to the nine EBP Training grantees for a second round of project funding. This reapplication process is in response to the BSCC Boards authorization of this funding. CONSEQUENCE OF NEGATIVE ACTION: The Probation Department will be ineligible to receive funding from the Board of State and Community Corrections. CHILDREN'S IMPACT STATEMENT: This program supports the following Board of Supervisors’ community outcomes: "Children are Healthy and Ready for School", "Youth Are Healthy and Preparing for Adulthood", and "Families and Communities Are Safe." ATTACHMENTS Resolution No. 2016/659 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/659 IN THE MATTER OF: The Contra Costa County Probation Department's participation in the Evidence Based Practices (EBP) Training Project grant. WHEREAS the Contra Costa County Probation Department desires to participate in the Evidenced Based Practice Training Project Grant, funded through the Title II Grant Program and the Juvenile Justice Accountability Block Grant and administered by the Board of State and Community Corrections (hereafter referred to as BSCC). NOW, THEREFORE, BE IT RESOLVED: that the County Probation Officer, or designee, is authorized on the behalf of this Governing Board to submit the grant proposal for this funding and sign the Grant Agreement with the BSCC, including any amendments thereof. BE IT FURTHER RESOLVED that the state grant funds received hereunder shall not be used to supplant expenditures controlled by this body. BE IT FURTHER RESOLVED that the Contra Costa County Probation Department agrees to provide all matching funds required for said project and abide by the statutes and regulations governing the State Grant's Program (including General terms and Condition 610) as well as the terms and conditions of the Grant Agreement as set forth by BSCC. Contact: James Rivers (925) 957-2712 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Agreement #28-859-1 with Chevron Services Company, a Division of Chevron USA, Inc. to pay the County in an the amount not to exceed $110,000, for the County’s Public Health Laboratory to provide quantiferon testing services, for the period from October 15, 2016 through October 15, 2019. FISCAL IMPACT: This Agreement will result in an amount not to exceed $110,000 from Chevron Services Company for the Public Health Division Laboratory to provide quantiferon testing services. No County match required. BACKGROUND: County’s Public Health Lab Division has been providing qualified quantiferon testing services to Chevron since November 2007. The quantiferon test detects acute or latent tuberculosis and for the last six (6) years testing has increased by 50%. The cost is $150 per test and the number of tests will vary, based on the need by Chevron. Approval of Agreement #28-859-1 will allow the Public Health APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Dan Peddycord, 925-313-6712 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: T Scott, Marcy Wilhelm C. 46 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Agreement #28-859-1 with Chevron Services Company, a Division of Chevron USA, Inc. BACKGROUND: (CONT'D) Laboratory to continue providing services and receive funding to support quantiferon testing, including agreeing to indemnify and hold harmless the grantor for any claims arising out of the County’s performance under this agreement, through October 15, 2019. CONSEQUENCE OF NEGATIVE ACTION: If this agreement is not approved, the County will not receive funds to continue the testing support Chevron needs. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute the third contract amendment, effective June 20, 2016, with Global Tel*Link Corporation (GTL) to modify the term of the contract, establish rate changes for inmate telephone calls and to memorialize prior calling rate changes. FISCAL IMPACT: 100% Revenue; No net County costs. BACKGROUND: On July 1, 2008, the County entered into a contract with GTL to provide the Inmate Calling Program. This contract was amended with the First Amendment on August 1, 2010 and with the Second Amendment on June 1, 2012. This Third Amendment will address changes needed to extend the term of the contract, provide further clarification for future FCC rulings, and modify the calling rates being charged to the inmates housed at the West County Detention Facility, Martinez Detention Facility, and Marsh Creek Detention Facility. CONSEQUENCE OF NEGATIVE ACTION: The County would be at risk due to the current term of the contract being APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown, 925-335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 47 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Global Tel*Link Corporation Contract Amendment CONSEQUENCE OF NEGATIVE ACTION: (CONT'D) out of date and needing modification. This risk provides the opportunity for GTL to cancel service (without notice) at the County facilities which would, in turn, provide inmates with no form of outside communication with the general public. The County would also proceed without being contractually protected with GTL with regards to processes and procedures on how to handle future FCC rulings/changes. CHILDREN'S IMPACT STATEMENT: None. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee (the Director of Environmental Health), to submit Grant Application #28-759-17 (TEA-24), to the California Department of Resources Recycling and Recovery (CalRecycle), to pay the County in an amount not to exceed $450,000, for the Environmental Health Waste Tire Enforcement Program, for the period from June 30, 2017 to September 28, 2018. FISCAL IMPACT: Approval of this application will result in an amount not to exceed $450,000 from CalRecycle for the Environmental Health Waste Tire Enforcement Program. The funds are allocated and available from CalRecycle for grants to solid waste Local Enforcement Agencies (LEA) and cities and counties with regulatory authority within the city and county government to perform enforcement/compliance and surveillance activities at waste tire facilities. No County match required. BACKGROUND: Contra Costa Environmental Health/General Programs is the solid waste LEA for the entire county, including all incorporated cities except for the City of Pittsburg. CalRecycle has been delegated the responsibility for the administration of the program within the state, setting up necessary procedures governing application APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Marilyn Underwood, 925-692-2521 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm C. 48 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Submission of Grant Application #28-759-17 to the California Department of Resources Recycling and Recovery (CalRecycle) BACKGROUND: (CONT'D) by cities and counties under the program. The applicant (Contra Costa County) demonstrates it has sufficient staff resources, technical expertise, and/or experience with similar projects to carry out the proposed program. Approval of Application #28-759-17 will allow Contra Costa County Environmental Health services to apply for funds to implementation the waste tire enforcement program through September 28, 2018. CONSEQUENCE OF NEGATIVE ACTION: If this grant is not approved, the County will not be able to monitor and reduce illegal waste tire practices, educate and enforce proper waste tire management throughout the County, assist in reducing potential vector problems and prevent tire fires, nor protect public health and safety. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): ADOPT Resolution No. 2016/667 approving and authorizing the District Attorney, or designee, to submit an application and execute a grant award agreement, and any amendments or extensions thereof, pursuant to State guidelines, with the California Governor's Office of Emergency Services, Criminal Justice/Emergency Management & Victim Services Branch, for funding of the Human Trafficking Advocacy Program in the amount of $50,000 for the period October 1, 2016 through September 30, 2017. FISCAL IMPACT: The District Attorney will receive $50,000 of additional revenues. This grant requires a match of $12,500 which will be met with an in-kind match. BACKGROUND: The District Attorney is seeking to apply for grant funds that will focus on identifying and assisting victims of human trafficking. The Human Trafficking Advocacy Program grant will fund a half time victim advocate to provide critically important services to victims of APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Cherie Mathisen, 925-957-2234 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 49 To:Board of Supervisors From:Mark Peterson, District Attorney Date:December 6, 2016 Contra Costa County Subject:Human Trafficking Advocacy Program Grant Award for the Period October 1, 2016 through September 30, 2017 BACKGROUND: (CONT'D) sex trafficking and labor trafficking in Contra Costa County. Additionally, the advocate would work collaboratively with law enforcement, community organizations and the county human trafficking coalition to increase awareness about human trafficking and provide training and outreach to the community. CONSEQUENCE OF NEGATIVE ACTION: The District Attorney will be unable to apply for and accept the grant. ATTACHMENTS Resolution No. 2016/667 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/667 Human Trafficking Advocacy Program Grant Award for FY 2016/17. WHEREAS, the Board of Supervisors, Contra Costa County, desires to undertake a certain project designated as the Human Trafficking Advocacy Program to be funded in part from funds made available under the authority of the California Governor's Office of Emergency Services, Criminal Justice/Emergency Management & Victim Services Branch. NOW, THEREFORE BE IT RESOLVED that the District Attorney of the County of Contra Costa is authorized to execute, on behalf of the Board of Supervisors, the Grant Award Agreement, including any extensions or amendments thereof. BE IT FURTHER RESOLVED that the grant funds received hereunder shall not be used to supplant expenditures previously authorized or controlled by this body. Contact: Cherie Mathisen, 925-957-2234 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Tetra Tech Inc., in an amount not to exceed $112,500 to develop an update to the County's Local Hazard Mitigation Plan for the term of September 1, 2016 through August 1, 2018. FISCAL IMPACT: $112,500 FEMA funded (75%) and in kind no cash match of $37,500 (25%). BACKGROUND: The County developed its hazard mitigation plan pursuant to the Disaster Mitigation Act of 2000 (Public Law 106-109) that enables to the county to pursue hazard mitigation grant funding under the Robert T. Stafford act, administered by FEMA. If a community does not have a FEMA approved hazard mitigation plan, it is not eligible to receive funding under the 5 FEMA hazard mitigation grant programs authorized under the Stafford Act. Section 201.69(c)4(i), 44CFR, requires a mitigation plan to be comprehensively updated within a 5-year cycle. The Contra Costa County Hazard Mitigation Plan will officially expire on February 27, 2017. If the plan is not updated and approved APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown 925-335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 50 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Tetra Tech - Mulit Hazard Mitigation Plan Update BACKGROUND: (CONT'D) by both the State of California and FEMA region X, the County and its planning partners will net be eligible to pursue funding under the requisite programs made available after February 27, 2017; until such time that the County and its planning partners are covered by an approved hazard mitigation plan. CONSEQUENCE OF NEGATIVE ACTION: A negative action on this may preclude the County from obtaining FEMA Disaster Mitigation fund or Disaster Recovery funds in the future. RECOMMENDATION(S): APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Animal Services Director, a purchase order with Pet Food Express in an amount not to exceed $350,000 to procure animal feed and supplies for the period November 1, 2016 through October 31, 2017. FISCAL IMPACT: $350,000: 37% User Fees, 54% City Revenue, 9% County General Fund BACKGROUND: Purchasing Services posted a formal bid # 1607-190 soliciting local companies to submit offers for Pet Food to support the Animal Shelter. Pet Food Express is a Leader in the Industry and an expert in pet nutrition and health benefits and offers a grain-free product. Pet Food Express provided the most cost competitive pricing with a 30% discount off retail prices, weekly deliveries without charging for shipping, and is willing to hold prices for a 2 year period. Pet Food Express promotes adoption campaigns that provide funding for food and supplies needed at the Shelters. Pet Food Express has over 60 stores in the Greater Bay Area and partners with a variety of other local Government Agencies. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Ward, 925-335-8370 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 51 To:Board of Supervisors From:Beth Ward, Animal Services Director Date:December 6, 2016 Contra Costa County Subject:Approve and Authorize a purchase order with Pet Food Express CONSEQUENCE OF NEGATIVE ACTION: Contra Costa's Animal shelter will be unable to purchase the food necessary to provide for the animal's needs. RECOMMENDATION(S): APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract amendment, effective July 1, 2016, with One Solution Technology to increase the payment limit by $401,000 to a new payment limit of $869,000 for Child Location of Utilization Database System (CLOUDS) software for managing County's child and family eligibility determination, enrollment, assessment data, and attendance management solutions with no change to term July 1, 2015 through June 30, 2018. FISCAL IMPACT: $401,000: 50% State Funding and 50% Federal Funding (CFDA# 93.600). BACKGROUND: Contractor was selected as a sole source provider based upon on-going relationship with department. The board approved the original contract on June 16, 2015. This board order is to approve a contract amendment to add more training and customized software services with funding from an Early Head Start partnership grant received by the County on March 29, 2016. CLOUDS (Child Location Observation Utilization Data System) is a management information system designed to provide increased safety for children and to enhance staff productivity in the childcare centers. Through the use of CLOUDS technology, teachers are able to ensure the optimum safety and visibility of the young children in their care at all times. The system works on Secure technology which ensures confidentiality and features remote access through a secure web-based program limited to the county’s computer system and a three digit encrypted central database which requires an authenticated profile. The department utilized a federal quality improvement grant as seed APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: CSB (925) 681-6303 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Sung Kim, Jagjit Bhambra, Eric Pormento, Cassandra Youngblood C. 52 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Contract amendment with One Solution Technology funding to work with One Solution Technology to custom create the system to provide the following: BACKGROUND: (CONT'D) Enhanced security and safety for all children in the classrooms Facilitation of enrollment process Automation of attendance management, meal count and staffing Increased efficiency in food service management Monitor the location of all children by providing an audible alarm Real time monitoring of teacher to child ratios The system is capable of further enhancement to keep abreast and incorporate changing Federal, State, and Local regulations and added Programs. CONSEQUENCE OF NEGATIVE ACTION: The department will be unable to acquire additional training and customized software services from this vendor. CHILDREN'S IMPACT STATEMENT: RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute, on behalf of the County, Contract Amendment Agreement #26-577-13 with All Health Services Corporation, a corporation, effective July 1, 2016, to amend Contract #26-577-12, to increase the payment limit by $2,389,412, from $1,967,000 to a new payment limit of $4,356,412 with no change in the original term of October 1, 2015 through September 30, 2017. FISCAL IMPACT: This amendment is funded 100% Hospital Enterprise Fund I. (No rate increase) BACKGROUND: On October 20, 2015, the Board of Supervisors approved Contract #26-577-12 with All Health Services Corporation, for the provision of temporary medical staffing services at the Contra Costa Regional Medical Center and Health Centers (CCRMC) and Detention facilities, including registered nurses, certified nursing assistants, ophthalmology technicians, physical and occupational therapists, and psychiatric technicians, for the period from October 1, 2015 through September 30, 2017. At the time of negotiations, the payment limit was based on target levels of utilization. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Anna Roth, 925-370-5101 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: K Cyr, M Wilhelm C. 53 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Amendment #26-577-13 with All Health Services Corporation BACKGROUND: (CONT'D) However, the utilization during the term of the agreement was higher than originally anticipated. Approval of Contract Amendment Agreement #26-577-13 will allow the Contractor to provide additional hours of temporary medical staffing services through September 30, 2017. CONSEQUENCE OF NEGATIVE ACTION: If this amendment is not approved, patients requiring medical services will not have access to Contractor’s services. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract with Julia Dyckman Andrus Memorial, Inc., in an amount not to exceed $104,730, to implement a trauma-responsive model of services and trauma-responsive practices in Children and Family Services Bureau programs for the period of January 1, 2017 through December 31, 2017. (50% State, 50% Federal) FISCAL IMPACT: $104,730.00 50% State, 50% Federal (CFDA #93.658) BACKGROUND: The Sanctuary Institute division of Julia Dyckman Andrus Memorial, Inc. provides technical assistance, on-going training, and other tools for implementing a trauma-responsive model of services and trauma-responsive practices in organizations. This contract is to provide trauma-sensitive training to all Children and Family Services (CFS) Programs. The objectives of this Sanctuary Implementation Project (Project) are: Provide a shared knowledge practice base for all CFS staff, leadership, and its stakeholders.A. B. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Gina Chenoweth, 925-313-1648 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 54 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Contract with Julia Dyckman Andrus Memorial, Inc. for Trauma-Sensitive Practices Implementation BACKGROUND: (CONT'D) Create increased capacity to provide trauma-responsive services to adults, youth, and families served by CFS. Instill a trauma-responsive culture to serve as the foundation for operations at every layer of CFS to support positive organizational and clinical outcomes Establish trauma-responsive practices across all CFS program operations using a 30-month roll-out process. Year One focuses on engaging staff and leadership through training in trauma-responsive tools and culture, Year Two focuses on embedding a trauma-responsive culture, and the Final Six Months focuses on CFS Self-Evaluation and a formal evaluation by other trauma-responsive practicing organizations. This contract is for Year One of the Project in which the Contractor will establish trauma-responsive practices across all CFS program operations including the following: Conduct a two-day Four Pillar Needs Assessment with participation of manages, leadership, direct and indirect service provides, and clients. A. Conduct a five-day Sanctuary Institute Leadership Training for CFS leadership and selected staff.to integrate critical components of the trauma-responsive organizational framework by concentrating on leadership development and organizational alignment. B. Provide on-site consultation and additional phone or video call consultations to CFS leadership and staff.C. Stated outcomes for this contract are that CFS Program leadership and staff must be more comfortable in using and sustaining the trauma-responsive model of services and must recognize and achieve of specific milestones in the use of tools and integration of trauma-responsive concepts. CONSEQUENCE OF NEGATIVE ACTION: Participants in Children and Family Services Bureau programs will not receive services from staff and leadership delivered with improved trauma-awareness and trauma-sensitivity. CHILDREN'S IMPACT STATEMENT: The services provided under this contract support all five of Contra Costa County’s community outcomes: (1) "Children Ready for and Succeeding in School"; (2) "Children and Youth Healthy and Preparing for Productive Adulthood"; (3)"Families that are Economically Self-Sufficient"; (4) "Families that are Safe, Stable and Nurturing"; and (5)"Communities that are Safe and Provide a High Quality of Life for Children and Families” by implementing trauma-sensitive practices and instilling trauma-awareness in all Children and Family Services programs. RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Contract Amendment No. 2 to the Consulting Services Agreement with Kitchell/CEM, Inc., effective December 6, 2016, to increase the payment limit by $900,000 to a new payment limit of $1,400,000, and to extend the termination date to December 31, 2019, to continue providing “on-call” construction management/project management services. FISCAL IMPACT: 100% Federal, State, Local, and/or General Funds. BACKGROUND: The Public Works Department is involved in various projects in the County, which require construction management/project management services for capital improvement projects. After a solicitation process, this Consultant was selected as one of four firms to provide project management services on an "on-call" basis to augment Public Works staff. The Board of Supervisors approved the Agreement with the Consultant on July 7, 2015. On February 9, 2016, the Board approved Amendment No. 1, increasing the payment limit from $250,000 to $500,000. The County’s need for "on-call" APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 55 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE a contract amendment with Kitchell/CEM, Inc. BACKGROUND: (CONT'D) construction management/project management consulting services is greater than initially anticipated. Some projects that will require project management/construction management services are the new fire stations, expansion of the West County Health Center, and any other major capital projects. In August, the Public Works Department requested additional Statement of Qualifications ("SOQs) for construction management/project management services, which were due September 13, 2016. The Public Works Department received 7 SOQs from interested firms and 4 were shortlisted. A selection committee comprised of County staff conducted interviews and ranked the shortlisted firms. Kitchell/CEM was one of the top ranking firms. It is recommended that Kitchell/CEM be awarded Amendment No. 2 to its existing Consulting Services Agreement. CONSEQUENCE OF NEGATIVE ACTION: Without Board approval, the Consultant will not be able to provide additional "on-call" construction management/project management services to complete necessary capital projects, which may jeopardize funding and delay design and construction of various capital projects. RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Contract Amendment No. 4 to Consulting Services Agreement with Carey & Co. Inc., (Carey) to increase the payment limit by $110,000 to a new payment limit of $830,000, to provide additional construction administration services, and to extend the termination date to March 31, 2017, for exterior renovations at 625 Court Street, Martinez Project. FISCAL IMPACT: 100% General Fund. BACKGROUND: On September 25, 2012, the County entered into a Consulting Services Agreement with Carey to provide architectural services for the subject project. During building investigations, it was observed that a structural deficiency exists at the roof/wall connection. On June 25, 2013, the Consulting Services Agreement was amended to include a building structural analysis to determine if there are any other structural deficiencies in the building, the risks the deficiencies APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 56 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE Amendment No. 4 to the Consulting Services Agreement with Carey & Co. for the Exterior Renovations at 625 Court Street (WH190D) BACKGROUND: (CONT'D) pose in the event of an earthquake, and repair options and costs. Upon completion of the structural analysis, which recommended seismic upgrades to the building, it was determined that additional consulting services are required to address the impact of the seismic upgrades on the existing building mechanical, plumbing, and electrical systems, and existing life safety and accessibility conditions. On April 22, 2014, the Board of Supervisors approved Amendment No. 2 to Carey's agreement to provide for the additional services required for a building systems, life safety and accessibility conditions analysis, including a cost estimate for any work required due to the seismic upgrades. Upon completion of the structural and building systems, life safety, and accessibility condition analyses, it was decided that the project would include certain additional upgrades to the building’s structural system that were identified in the structural analysis report. It was further decided that the project would include certain additional ADA and other improvements to building deficiencies that were identified in the facility condition analysis report conducted by ISES Corporation for the County in 2007. Amendment No. 3 to Carey’s agreement provided for the additional services required to include these upgrades and improvements in the project. Due to a longer than expected construction schedule, changed and unforeseen conditions, and additional services, an increase in construction administration time and expense is required to complete the project. Amendment No. 4 will provide for the additional construction administration services necessary for Carey & Co. to assist in the completion and close-out of the project. It is recommended that the Board approve Amendment No. 4 to the existing Carey & Co. Inc., Consulting Services Agreement dated September 25, 2012. CONSEQUENCE OF NEGATIVE ACTION: Without this Amendment No. 4, Carey & Co. will be unable to provide the additional construction administration services required to complete and close-out the project. RECOMMENDATION(S): ADOPT Resolution No. 2016/651, approving and authorizing the County Administrator, or designee, to execute an agreement with the City of Concord to apportion sales tax revenue from future development on Parcel C at Buchanan Field Airport. FISCAL IMPACT: There may be impact on the General Fund. The agreement provides for the County and the City to share sales and use tax revenue (“STR”) generated at the site. Each jurisdiction’s allocation depends on whether the future tenants of Parcel C previously operated at a different location in Concord. If the tenant did not previously operate at a different location in Concord, the City will be entitled to 51% of the STR and the County will be entitled to 49%. If the tenant previously operated at a different location in Concord, the City will be entitled to a little more than 51% of the STR, with the actual amount determined by an agreed-upon formula. If a lease is successfully negotiated for Parcel C, the Airport Enterprise Fund would realize lease and other revenue. BACKGROUND: Parcel C is a vacant County-owned parcel located on the northwest corner of Marsh Drive and Solano Way on the north side of Buchanan Field Airport (APN 125-210-012). The parcel is designated for non-aviation use on the Buchanan Field Master Plan. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lisa Driscoll, County Finance Director (925) 335-1023 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Beth Lee, County Administrator, Auditor-Controller, Conservation and Development, Public Works, Federal Aviation Administration C. 57 To:Board of Supervisors From:David Twa, County Administrator Date:December 6, 2016 Contra Costa County Subject:Resolution Authorizing Sales Tax Apportionment with the City of Concord and Approval of Agreement BACKGROUND: (CONT'D) > The parcel is approximately 4.6 acres in size. About a third of the parcel is within the County’s jurisdiction; the remainder is within the jurisdiction of the City of Concord (“City”). A majority of the parcel is within the Runway 19R protection zone, which requires the land uses and subsequent improvements (such as building location, height, and the like) to comply with the FAA compatibility standards. While the property may have development constraints, it is well situated for commercial and retail uses. The property has easy access to and visibility from Highway 4, which has resulted in many development interests over the years. Development attempts, however, have been prevented because there was no agreement between the County and the City with respect to the development review process or the apportionment of the sales and use tax revenue that would result from a commercial operation at the site. In order to permit development of the site, the County and the City have developed an agreement that addresses the primary issues: (1) apportionment of sales and use tax revenues; (2) designation of the lead jurisdiction for the entitlement process (planning, environmental, and building inspection functions); and (3) coordination and communication between the parties. CONSEQUENCE OF NEGATIVE ACTION: Not having an agreement to address the private development of, and apportionment of tax revenue from, Parcel C will result in the property remaining undeveloped for the foreseeable future, which may negatively impact the Airport Enterprise Fund and County General Fund. ATTACHMENTS Resolution No. 2016/651 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/651 RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, AUTHORIZING THE COUNTY ADMINISTRATOR TO EXECUTE AN AGREEMENT BETWEEN THE COUNTY AND THE CITY OF CONCORD, CALIFORNIA TO APPORTION REVENUE GENERATED ON COUNTY-OWNED LAND LOCATED IN THE CITY OF CONCORD AND UNINCORPORATED COUNTY, KNOWN AS PARCEL C RESOLVED, by the Board of Supervisors of the County of Contra Costa, State of California: WHEREAS, the County of Contra Costa (the “County”) owns an undeveloped parcel of land located on Solano Way and Marsh Road in Concord, California (APN 125-210-012) that is commonly known as Parcel C (“Parcel C”); and WHEREAS, a portion of Parcel C is within the jurisdiction of the City of Concord, California (the “City”) and a portion is within the jurisdiction of the County; and WHEREAS, both the City and the County would benefit from the development of Parcel C for appropriate commercial purposes; and WHEREAS, to improve the development potential of Parcel C, the County and the City desire to jointly establish (i) a development review process for any proposed development of Parcel C, and (ii) the allocation of any sales tax revenue generated as a result of the development of Parcel C; and WHEREAS, section 55704 of the California Government Code provides that if a legislative body determines that one or more retailers have been, or will be, established in one local agency and that consumers residing in one or more other local agencies are, or will be, purchasing tangible personal property from such retailers, to the extent that equity requires the revenues of such local agency to be distributed in a fair and just manner to all local agencies concerned, a contract may be entered into to apportion the revenue of the local agency in which such retailers are located; NOW THEREFORE, be it resolved, determined and ordered by this Board of Supervisors of the County of Contra Costa as follows: Section 1. Recitals. All of the above recitals are true and correct. Section 2. Determination. This Board hereby determines, pursuant to Government Code Section 55704, that one or more retailers will, in time, be established on Parcel C and that consumers residing in unincorporated Contra Costa County and in the City of Concord will be purchasing tangible personal property from such retailers and that equity requires the sales and use tax revenues generated by such sales be distributed in a fair and just manner to the County and the City. Section 3. Authorization to Execute Contract. Pursuant to Government Code Section 55704.5, by a vote of not less than two-thirds of its members, the Board hereby authorizes the County Administrator, or his designee, to execute and deliver on the County’s behalf (i) a contract between the County and the City regarding private development on Parcel C and apportionment of sales and use tax revenue from any retailers situated on Parcel C, and (ii) any other documents that the County Administrator or County Counsel deems necessary or advisable to comply with the intent of this Resolution. Section 4. Effective Date. This resolution shall take effect from and after its adoption. The foregoing resolution was, on the 6th day of December, 2016, adopted by the Board of Supervisors of the County of Contra Costa. I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. Contact: Lisa Driscoll, County Finance Director (925) 335-1023 the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Beth Lee, County Administrator, Auditor-Controller, Conservation and Development, Public Works, Federal Aviation Administration RECOMMENDATION(S): ADOPT Resolution No. 2016/652 approving and authorizing the County Probation Officer, or designee, to apply for, accept and execute a grant contract with the California Board of State and Community Corrections in an amount not to exceed $117,238 to continue facilitation of Proud Parenting Programs for young fathers and mothers involved in the criminal justice system for the period July 1, 2016 through June 30, 2017. FISCAL IMPACT: $117,238 non-competitive application with a possible additional year. (10% Match required, to be funded by STAND! for Families Free of Violence) BACKGROUND: The Proud Fathers Program provides parent education, parent-child activities, and case management for young fathers and fathers-to-be who are at risk of committing child abuse due to their histories of domestic violence or child abuse, involvement in the criminal justice system, or other risk factors. The program relies on three strategies for improving parent skills and parent-child relationships: 1. Parenting education through an evidence-based parent education curriculum. 2. Referrals to case management to guide parents toward self-sufficiency and stability. 3. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Danielle Fokkema, 925-313-4195 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 58 To:Board of Supervisors From:Todd Billeci, County Probation Officer Date:December 6, 2016 Contra Costa County Subject:2016/2017 Proud Parenting Grant Program BACKGROUND: (CONT'D) Supervised parent-child activities and excursions, where parents can practice the skills they may have learned. The Probation Department has received this grant for the last four years. The program served youth in the Orin Allen Youth Rehabilitation Facility, Youthful Offender Treatment Program as well as youth on Probation in the community. CONSEQUENCE OF NEGATIVE ACTION: If the application is not submitted, parenting services will not be provided by STAND! For Families Free of Violence for youth under Probation Supervision. CHILDREN'S IMPACT STATEMENT: Services provided as funded by this application will improve the quality of life for youth in the juvenile justice system and their children and provide a service to which they might not otherwise have access. ATTACHMENTS Resolution No. 2016/652 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/652 IN THE MATTER OF: The Board of State and Community Corrections' Proud Parenting Program WHEREAS Contra Costa County desires to participate in the Proud Parenting Program administered by the Board of State and Community Corrections (hereafter referred to as BSCC). NOW, THEREFORE, BE IT RESOLVED that the Probation Department be authorized on behalf of the Board of Supervisors to submit the grant proposal for this funding and sign the Grant Agreement with the BSCC, including any amendments thereof. BE IT FURTHER RESOLVED that grant funds received hereunder shall not be used to supplant expenditures controlled by this body. BE IT FURTHER RESOLVED that the county agrees to abide by the terms and conditions of the Grant Agreement as set forth by the BSCC. Contact: Danielle Fokkema, 925-313-4195 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: RECOMMENDATION(S): AWARD and AUTHORIZE the Public Works Director, or designee, to execute a Consulting Services Agreement with Consolidated CM in an amount not to exceed $900,000, to provide as-needed construction management/project management services for the period of December 6, 2016 through December 31, 2019, with a County option to extend the Agreement to December 31, 2020, if elected by the Public Works Director, Countywide. FISCAL IMPACT: 100% Federal, State, Local, and/or General Funds. BACKGROUND: The Public Works Department is in need of as-needed construction management/project management consulting services to augment Public Works staff. Projects that will require construction management/project management services are new fire stations, an expansion of the West County Health Center, and any other major capital projects. In August, the Public Works Department requested Statement of Qualifications ("SOQs) for construction management/project management services, which were due September 13, 2016. The Public Works Department received seven SOQs from interested firms and four APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 59 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:AWARD and AUTHORIZE a Consulting Services Agreement with Consolidated CM for Construction Management/Project Management Services BACKGROUND: (CONT'D) were shortlisted. A selection committee comprised of County staff conducted interviews and ranked the shortlisted firms. Consolidated CM was one of the top ranking firms. It is recommended that Consolidated CM be awarded a Consulting Services Agreement in an amount not to exceed $900,000. The agreement includes a County option to extend the Agreement to December 31, 2020, if elected by the Public Works Director. CONSEQUENCE OF NEGATIVE ACTION: Without Board approval, the Consultant will not be able to provide as-needed construction management/project management services to complete necessary capital projects, which may jeopardize funding and delay design and construction of various capital projects. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute, on behalf of the County, Contract #74-419-6 with William E. Berlingieri, M.D., an individual, in an amount not to exceed $313,600, to provide outpatient psychiatric services in West Contra Costa County, for the period from January 1, 2017 through December 31, 2017. FISCAL IMPACT: $313,600: This Contract is funded 100% Mental Health Realignment. (No rate increase) BACKGROUND: On November 10, 2015, the Board of Supervisors approved Contract #74-419-5 with William E. Berlingieri, M.D, for the provision of outpatient psychiatric services to mentally ill adults in West Contra Costa County, including, but not limited to: diagnosis, counseling, evaluation, and medical and therapeutic treatment and consulting and training in medical and therapeutic matters for the period from January 1, 2016 through December 31, 2016, Approval of Contract #74-419-6 will allow Contractor to continue providing outpatient psychiatric services through December 31, 2017. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Cynthia Belon, 925-957-5201 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: K Cyr, M Wilhelm C. 60 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #74-419-6 with William E. Berlingieri, M.D. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, patients requiring outpatient psychiatric services in West Contra Costa County will not have access to Contractor’s services. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Contract Amendment No. 2 to the Consulting Services Agreement with Anchor Engineering, Inc., effective December 6, 2016, to increase the payment limit by $900,000, to a new payment limit of $1,400,000, and to extend the termination date to December 31, 2019, to continue providing “on-call” construction management/project management services. FISCAL IMPACT: 100% Federal, State, Local, and/or General Funds. BACKGROUND: The Public Works Department is involved in various projects in the County, which require construction management/project management services for capital improvement projects. After a solicitation process, this Consultant was selected as one of four firms to provide project management services on an "on-call" basis to augment Public Works staff. The Board of Supervisors approved the Agreement with the Consultant on July 7, 2015. On February 9, 2016, the Board approved Amendment No. 1, APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 61 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE a contract amendment with Anchor Engineering, Inc. BACKGROUND: (CONT'D) increasing the payment limit from $250,000 to $500,000. The County’s need for "on-call" construction management/project management consulting services is greater than initially anticipated. Some projects that will require construction management/project management services are the new fire stations, expansion of the West County Health Center, and any other major capital projects. In August 2016, the Public Works Department requested additional Statement of Qualifications ("SOQs) for construction management/project management services, which were due September 13, 2016. The Public Works Department received seven SOQs from interested firms and four were shortlisted. A selection committee comprised of County staff conducted interviews and ranked the shortlisted firms. Anchor Engineering, Inc., was one of the top ranking firms. It is recommended that Anchor Engineering, Inc., be awarded Amendment No. 2 to its existing Consulting Services Agreement. CONSEQUENCE OF NEGATIVE ACTION: Without Board approval, the Consultant will not be able to provide additional "on-call" construction management/project management services to complete necessary capital projects, which may jeopardize funding and delay design and construction of various capital projects. RECOMMENDATION(S): APPROVE and AUTHORIZE the Public Works Director, or designee, to execute Amendment No. 2 to Consulting Services Agreement with KMD Architects ("KMD") to increase the payment limit by $95,000, to a new payment limit of $305,000, to provide additional architectural and engineering consulting services in connection with the County's funding application to the California Board of State and Community Corrections for $80 million (pending) for the construction of the West County Re-entry, Treatment and Housing Replacement Project, Richmond area. FISCAL IMPACT: Funding for the grant application and preliminary programming phase provided by Sheriff Department's West County Detention Facility, 100% General Fund. BACKGROUND: On April 14, 2015, the County entered into a Consulting Services Agreement with KMD to provide architectural and engineering consulting services in connection with APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 62 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE Amendment No. 2 to Consulting Services Agreement with KMD Architects (WW0845) BACKGROUND: (CONT'D) the County’s funding application to the California Board of State and Community Corrections for $80 million for the construction of the West County Reentry, Treatment and Housing Replacement Project. At that time, the County was in the process of applying for funding in the amount of $80 million from the California Board of State and Community Corrections (“BSCC”). Similar to past year’s Senate Bill (SB) 1022 program, use of the SB 863 program was proposed to build a new housing unit at the West County Detention Facility (“WCDF”) campus that would replace the use of existing beds at the Martinez Detention Facility with appropriate high security housing, along with additional space for reentry and mental health treatment programs currently unavailable to the high-security population. The expansion project entailed the development of approximately 2.3 acres at the WCDF and was estimated to consist of an approximately 132,000 square foot (building areas) facility with 416 beds at total cost of about $89 million and was to be completed in spring of 2020. The expansion would have offered facilities and programs to help prepare inmates for reentry into society, as well as support outpatient medical, recreational, and minor administrative facilities. Architectural and engineering (A/E) and other consulting services were underway to prepare the BSCC funding application. This consisted primarily, but was not limited to: updated needs assessment and programming for inmate programs, particularly to address AB 109 and mentally ill offenders; development of space requirements based on that assessment, and associated cost estimating; concept floor plan and elevations rendering; and funding application writing services to address specific requirements of the grant. August 18, 2015, the Board approved Amendment No. 1 to KMD's agreement, which provided more detailed planning, development, and design for the Reentry Programs, Workforce Readiness, and Family Reunification areas. This included developing the floor plans of these support spaces to the same level of detail as the Housing Units to facilitate a better understanding of the relationship between the Conceptual Design plans and Program elements. This additional work was required to enhance the Agency's application proposal and the chances for Senate Bill 863 funding. The County was not awarded the SB 863 grant funding. The County now intends to submit a grant funding application for SB 844, which is scheduled to be released this month. Amendment No. 2 to the KMD agreement will update the previous SB 863 application document incorporating any new technical requirements associated with the new SB 844 application. Under this amendment, KMD will provide new building program/design concepts. In addition, and if required, KMD will reduce the current building program in order to conform to a reduced project budget. CONSEQUENCE OF NEGATIVE ACTION: If Amendment No. 2 is not approved, this will negatively impact the County's submittal of the grant application and lesson the possibility of the County receiving the SB 844 funding. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute, on behalf of the County, Contract Amendment Agreement #26-673-4, with Shaista Rauf, M.D., an individual, effective December 1, 2016, to amend Contract #26-673-3 to add electromyography neurology services with no change in the payment limit of $720,000, and no change in the original term of September 1, 2016 through August 31, 2019. FISCAL IMPACT: This amendment is funded 100% Hospital Enterprise Fund I. (No rate increase) BACKGROUND: On August 9, 2016, the Board of Supervisors approved Contract #26-673-3, with Shaista Rauf, M.D., for the provision of neurology services, including but not limited to: clinic coverage, on call coverage, and consultation, at Contra Costa Regional Medical Center (CCRMC), for the period from September 1, 2016 through August 31, 2019. Approval of Contract Amendment Agreement #26-673-4 will allow the Contractor to provide an additional level of electromyography neurology services at CCRMC through August 31, 2019. CONSEQUENCE OF NEGATIVE ACTION: If this amendment is not approved, patients requiring electromyography neurology services will not have access to Contractor’s services. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Samir Shah, M.D., 925-670-5525 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: K Cyr, M Wilhelm C. 63 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Amendment #26-673-4 with Shaista Rauf, M.D. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Sheriff-Coroner, a purchase order amendment with Allen Packaging Company to increase the payment limit by $35,000 to a new payment limit of $160,000 in order to provide three-compartment trays for Seal-a-Meal food to be used at the West County, Martinez, and Marsh Creek Detention Facilities for the period January 1, 2016 through December 31, 2016. FISCAL IMPACT: $35,000; 100% County General Fund, Budgeted. BACKGROUND: Allen Packaging supplies the packaging equipment and supplies used for the seal-a-meal food central production system at WCDF, where inmate meals are produced and distributed to MDF and MCDF. This central production system has proven to increase efficiency and reduce costs for mandated provided meals to inmates. This amendment to the purchase order amount will accommodate purchases throughout the effective period. CONSEQUENCE OF NEGATIVE ACTION: The Sheriff's Office may not be able to acquire trays required for serving food to inmates in the adult detention facilities. CHILDREN'S IMPACT STATEMENT: No impact. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Liz Arbuckle, 925-335-1529 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Heike Anderson, Liz Arbuckle, Tim Ewell C. 64 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Purchase Order - Allen Packaging RECOMMENDATION(S): APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute a contract amendment with Lawrence G. Mallon, Esquire, to extend the term from December 31, 2016 through December 31, 2018 with no change to the payment limit of $150,000 to provide technical assistance services related to the San Francisco to Stockton Navigation Improvement Study and other navigation projects. FISCAL IMPACT: All costs are covered by the Ship Channel Maintenance Assessment District. BACKGROUND: The San Francisco Bay to Stockton Navigation Improvement Study is part of a long-term effort to improve deep draft navigation from the San Francisco Bay to Stockton by deepening the existing ship channel. The Port of Stockton (Port) is the U.S. Army Corps of Engineers' (USACE's) non-federal sponsor for the study, and Contra Costa County Water Agency (Water Agency) and the Western States Petroleum Association (WSPA), including its member refineries, are contributing partners to the Port. The ship channel is currently maintained to a depth of 35-feet. The project objectives are to deepen the ship channel, thereby reducing transportation costs and increasing economic efficiency of maritime commerce en route to refineries and other industrial & commercial uses along the northern Contra Costa County waterfront and to the Port. This will also improve maritime navigation by reducing public safety risks due to possible groundings or collisions, and reduce potential environmental effects associated with current practice of partially unloading vessels before they enter the channel (i.e. reduce vessel trips and spill risks). APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ryan Hernandez (925)674-7824 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: John Kopchik, DCD, Maureen Toms, DCD, Raymond Wong C. 65 To:Board of Supervisors From:John Kopchik, Director, Conservation & Development Department Date:December 6, 2016 Contra Costa County Subject:Authorize a Modification to the Existing Contract with Lawrence G. Mallon, Esquire, Navigation Consultant BACKGROUND: (CONT'D) Mr. Mallon has been involved in the navigation project over the years and brings a considerable amount of institutional knowledge about the project and the USACE’s planning process, among other expertise. This study includes the preparation of an Environmental Impact Statement/Report. Mr. Mallon participates in meetings, reviews documents, and provides advice on achieving a successful navigation improvement project; but there continues to be a substantial amount of work left to do. The term of this contract currently expires on December 31, 2016. The Department seeks to extend Mr. Mallon’s contract for another two years, to expire on December 31, 2018, with no increase to the payment limit to ensure that he remains under contract to the County through the completion of the navigation improvement study. CONSEQUENCE OF NEGATIVE ACTION: The contract with Lawrence G. Mallon, Esquire will expire on December 31, 2016, leaving the Department without critical expertise and significant institutional knowledge of the San Francisco to Stockton Navigation Improvement Study. ATTACHMENTS RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute, on behalf of the County, Contract #27-672-6 with West Coast Retina Medical Group, Inc., a corporation, in an amount not to exceed $150,000, to provide ophthalmology services for Contra Costa Health Plan (CCHP) members and County recipients, for the period from January 1, 2017 through December 31, 2018. FISCAL IMPACT: $150,000: This contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: In March 2015, the County Administrator approved and the Purchasing Services Manager executed Contract #27-672-5 with West Coast Retina Medical Group, Inc., for the provision of ophthalmology services to Contra Costa Health Plan members and County recipients, for the period from January 1, 2015 through December 31, 2016. Approval of Contract #27-672-6 will allow the Contractor to continue to provide ophthalmology services through December 31, 2018. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd, M Wilhelm C. 66 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-672-6 with West Coast Retina Medical Group, Inc. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, certain specialized professional health care services for its members under the terms of their Individual and Group Health plan membership contracts with the County will not be provided. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract #27–764–7 with Oliver Wyman Actuarial Consulting, Inc., a corporation, in an amount not to exceed $405,000, to provide actuarial services for the Contra Costa Health Plan for the period from December 1, 2016 through November 30, 2018. FISCAL IMPACT: This Contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No Rate increase) BACKGROUND: The Health Services Department and the Contra Costa Health Plan are required by state and federal regulations to provide various certified actuarial documents in order to maintain its authorization to provide health care services to its members and recipients. This Contractor has an established record of providing this expertise. On January 6, 2015, the Board of Supervisors approved Contract #27–764–6 with Oliver Wyman Actuarial Consulting, Inc., for the period from December 1, 2014 through November 30, 2016 for provision of actuarial services. Approval of Contract #27–764–7 will allow Contractor to continue providing services through November 30, 2018, including changes to County’s Standard General Conditions and indemnification language. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary, 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd , M Wilhelm C. 67 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-764-7 with Oliver Wyman Actuarial Consulting, Inc. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, Health Plan will need to solicit and engage a new contractor leading to delays and potential failure to comply with state and federal regulations to provide various certified actuarial documents, and would not be able to set rates or offer services for Health Plan’s Medicare SelectCare, Healthy Families, County Employee Plans A, B, and A2, Individual, and Small/Large Group members. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract #27-261-15 with Sharon B. Drager, M.D., Professional Corporation, a corporation, in an amount not to exceed $150,000, to provide vascular surgery services to Contra Costa Health Plan (CCHP) members and County recipients for the period from December 1, 2016 through November 30, 2018. FISCAL IMPACT: This Contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: On December 9, 2014, the Board of Supervisors approved Contract #27-261-14 with Sharon B. Drager, M.D., Professional Corporation, M.D., for the provision of vascular surgery services to CCHP members and County recipients for the period from December 1, 2014 through November 31, 2016. Approval of Contract #27-261-15 will allow Contractor to continue providing vascular surgery services to CCHP members and County recipients through November 30, 2018. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary, 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd , M Wilhelm C. 68 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-261-15 with Sharon B. Drager, M.D., Professional Corporation CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, CCHP members and County recipients would not have access to Contractor’s services, which may result in a reduction in the overall levels of service to the community. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or designee, to execute on behalf of the County, Contract #27-188-7 with Gretchen D. Graves (dba Gretchen D. Graves, M.D.), an individual, in an amount not to exceed $500,000, to provide pediatric primary care services for Contra Costa Health Plan (CCHP) members and County recipients, for the period from December 1, 2016 through November 30, 2018. FISCAL IMPACT: This Contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: On December 2, 2014, the Board of Supervisors approved Contract #27-188-6 with Gretchen D. Graves, M.D., for the period from December 1, 2014 through November 30, 2016, to provide pediatric primary care services to CCHP members and County recipients. Approval of Contract #27-188-7 will allow the Contractor to continue to provide pediatric primary care services through November 30, 2018. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, Contra Costa Health Plan members and county recipients would not have access to Contractor’s services. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd , M Wilhelm C. 69 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-188-7 with Gretchen D. Graves (dba Gretchen D. Graves, M.D.) CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or designee, to execute on behalf of the County, Contract #27-162-7 with Juan R. Sequeira, M.D., an individual, in an amount not to exceed $300,000, to provide primary care physician services to Contra Costa Health Plan (CCHP) members and County recipients for the period from December 1, 2016 through November 30, 2018. FISCAL IMPACT: This Contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: On December 16, 2014, the Board of Supervisors approved Contract #27-162-6 with Juan R. Sequeira, M.D., for the provision of primary care services to Contra Costa Health Plan members and County recipients, for the period from December 1, 2014 through November 30, 2016. Approval of Contract #27-162-7 will allow the Contractor to continue providing primary care physician services through November 30, 2018. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, CCHP and County recipients would not have access to Contractor’s services, which may result in a reduction in the overall levels or service to the community. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary, 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd , M Wilhelm C. 70 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-162-7 with Juan R. Sequeira, M.D. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or designee, to execute on behalf of the County, Contract #27-159-10 with Abbas Mahdavi, M.D. (dba Abbas Mahdavi, M.D, Inc.), a corporation, in an amount not to exceed $800,000, to provide pediatric primary care services for the period from December 1, 2016 through November 30, 2018. FISCAL IMPACT: This Contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: On January 6, 2015, the Board of Supervisors approved Contract #27-159-9 with Abbas Mahdavi, M.D., Inc. for the provision of pediatric primary care services to Contra Costa Health Plan members, for the period from December 1, 2014 through November 30, 2016. Approval of Contract #27-159-10 will allow Contractor to continue providing pediatric primary care services through November 30, 2018. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, Contra Costa Health Plan members and county recipients would not have access to Contractor’s services. CHILDREN'S IMPACT STATEMENT: Not applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd, M Wilhelm C. 71 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-159-10 with Abbas Mahdavi, M.D. (dba Abbas Mahdavi, M.D., Inc.) RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract #27-569-7 with William W. Chen. M.D., Medical Corporation, a corporation, in an amount not to exceed $410,000, to provide primary care, allergy and immunology services to Contra Costa Health Plan (CCHP) members for the period from January 1, 2017 through December 31, 2018. FISCAL IMPACT: This Contract is funded 100% by Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: On January 13, 2015, the Board of Supervisors approved Contract #27-569-6 with William W. Chen. M.D., Medical Corporation, for the period from January 1, 2015 through December 31, 2016, to provide primary care services to Contra Costa Health Plan members. Approval of Contract #27-569-7 will allow the Contractor to provide primary care, allergy and immunology services through December 31, 2018. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, CCHP members requiring primary care services will not have access to Contractor’s services, which may result in a reduction in the levels of service to the community. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary, 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd , M Wilhelm C. 72 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-569-7 with William W. Chen, M.D., Medical Corporation CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE and AUTHORIZE the Purchasing Agent, or designee, to execute, on behalf of the Public Works Director, a purchase order amendment with Walnut Creek Ford, to increase the payment limit by $250,000, to a new payment limit of $410,000, and extend the termination date from December 31, 2016 to December 31, 2017 for Ford parts and accessories, Countywide. FISCAL IMPACT: This cost is to be funded through Public Works Fleet ISF budget. (100% Internal Service Fund-Fleet) BACKGROUND: Public Works Fleet Management is responsible for maintaining County vehicles. To do so, Fleet buys parts, accessories and warranty service from local auto dealers. As the fleet is mostly Ford vehicles, we buy a substantial amount from Ford dealers. As bid on BidSync #1112-004, four local Ford dealers were awarded this commodity, with Walnut Creek Ford being the primary. The original bid was for the duration of one (1) year with four (4) possible one (1) year extensions available. This request represents the fourth of the one year extensions. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Stan Burton, (925) 313-7077 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 73 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE a Purchase Order Amendment with Walnut Creek Ford CONSEQUENCE OF NEGATIVE ACTION: If this agreement is not approved, then purchasing Ford parts and accessories through Walnut Creek Ford will discontinue. RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to enter into a contract with Law Search Associates, LLC dba Legal Research Associates in an amount not to exceed $288,000 for law services to adult inmates incarcerated in County detention facilities for the term of January 1, 2016 to December 31, 2018. FISCAL IMPACT: No County Costs. $288,000; 100% Inmate Welfare Fund. Budgeted. BACKGROUND: Law Search Associates provide legal services to those incarcerated in Contra Costa Office of the Sheriff-Coroner Detention Facilities (Martinez Detention Facility, West County Detention Facility, and Marsh Creek Detention Facility). Law Search Associates will conduct legal research and meet with those incarcerated to facilitate their access to the Courts. This service is legally mandated under the laws of the State of California. CONSEQUENCE OF NEGATIVE ACTION: Should the Board of Supervisors deny this action the County will be out of compliance with State law. CHILDREN'S IMPACT STATEMENT: No impact. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown, (925) 335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 74 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Law Search Associates RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute, on behalf of the County, Contract #23–401-1 with FirstWatch Solutions, Inc., a corporation, in an amount not to exceed $500,000, to provide data link services for the Emergency Medical Services (EMS) web-based data surveillance systems, for the period from January 1, 2017 through December 31, 2019. FISCAL IMPACT: This Contract is funded 100% Hospital Enterprise Fund I. BACKGROUND: Under Contract #23-403-1, the Contractor will provide installation and configuration of the data link for the EMS web-based data surveillance systems including developing and testing interfaces, training and hosting services, through December 31, 2019. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, the dispatch, prehospital and hospital data would not be tracked in the County’s EMS surveillance systems and the County would not meet the requirements of the California’s Whole Person Care Initiative. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Frost, 925-646-4690 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, M Wilhelm C. 75 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #23-401-1 with FirstWatch Solutions, Inc. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Purchasing Agent, on behalf of the Health Services Department, to execute a Purchase Order with Patterson Medical Inc., in the amount of $300,000 for the purchase of rehabilitation therapy and physical therapy supplies at the Contra Costa Regional Medical Center (CCRMC) and the Contra Costa Health Centers (CCHC) for the period December 1, 2016 through November 30, 2019. FISCAL IMPACT: 100% funding is included in the Hospital Enterprise Fund I Budget. BACKGROUND: Patterson Medical Inc. has provided CCRMC and CCHC with rehabilitation and physical therapy supplies for many years. With the Novation Contract, CCRMC and CCHC receives a generous discount on all equipment and supplies ordered. Patterson Medical Inc. has the majority of supplies CCRMC and CCHC requires, and has always provided great customer service. CONSEQUENCE OF NEGATIVE ACTION: If this purchase order is not approved, CCRMC and CCHS will soon run out of supplies and no longer be able to provide services. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Anna Roth, 925-370-5101 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm, Crystal Grayson C. 76 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Patterson Medical Inc. Purchase Order CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Purchasing Agent, on behalf of the Health Services Department, to execute a Purchase Order with Optiv Security, Inc., in an amount not to exceed $260,000 for the purchase of Proofpoint software and support for the period November 8, 2016 through November 7, 2019. FISCAL IMPACT: 100% Funding is included in the Hospital Enterprise Fund I Budget. BACKGROUND: Proofpoint email protection software stops malware and non-malware threats such as impostor email. Proofpoint protects Health Services Department systems and data against advanced threats and compliance risks. This software also allows for sending encrypted email for protection of sensitive data. The county is party to an existing agreement with Proofpoint that governs the license and support of the software. CONSEQUENCE OF NEGATIVE ACTION: If this Purchase Order is not approved, the Department will not receive critical software updates. CHILDREN'S IMPACT STATEMENT: Not applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: David Runt, 925-313-6228 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Renee Nunez, Marcy Wilhelm C. 77 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Purchase Order with Optiv Security, Inc. RECOMMENDATION(S): Approve and authorize the Purchasing Agent, on behalf of the Health Services Department, to execute a Purchase Order with Sam Clar, in the amount of $398,000 for furniture purchase at 2400 Bisso Lane relocation of the Information Technology (IT) Division, for the period from November 1, 2016 through January 30, 2017. FISCAL IMPACT: 100% funding is included in the Hospital Enterprise Fund I Budget. BACKGROUND: Sam Clar has supplied needed furniture and installation for offices and other spaces to multiple Health Services Department (HSD) locations. The IT Division is relocating to 2400 Bisso Lane in Concord, and requires furniture and workstations to accommodate the 92 Field Technicians in the Division. CONSEQUENCE OF NEGATIVE ACTION: If this purchase order is not approved, the IT Division personnel will not have the furniture or workstations to perform their work efficiently. IT serves all of the HSD, and ensures the programs are up and running. CHILDREN'S IMPACT STATEMENT: Not applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: David Runt, 925-335-8700 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm, Gennifer Mountain, Jose Reyes C. 78 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Purchase Order with SAMCLAR for IT Relocation RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute, on behalf of the County, Contract Amendment/Extension Agreement #77-001-1 with La Clinica De La Raza, Inc., a non-profit corporation, effective December 1, 2016, to amend Contract #77-001, to increase the payment limit by $289,240, from $403,200 to a new payment limit of $692,440, and extend the termination date from April 30, 2017 to December 31, 2017. FISCAL IMPACT: This Contract is funded 100% by Contra Costa Cares Program: 33% County, 17% CCHP Enterprise Fund II, 50% other hospital entities. (No rate increase) BACKGROUND: On November 10, 2015, the Board of Supervisors approved Contract #77-001, with La Clinica De La Raza, Inc. for the provision of primary care medical services for the Contra Costa Cares Program, for the period from November 1, 2015 through April 30, 2017. Approval of Contract Amendment/Extension Agreement #77-001-1 will allow the Contractor to continue providing primary care services through December 31, 2017. CONSEQUENCE OF NEGATIVE ACTION: If this amendment is not approved, low income, uninsured adults would not have access to primary care services in Contra Costa County. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd, M Wilhelm C. 79 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Amendment/Extension #77-001-1 with La Clinica De La Raza, Inc. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract Amendment/Extension Agreement #77-002-1 with Lifelong Medical Care, a non-profit corporation, effective December 1, 2016, to amend Contract #77-002, to increase the payment limit by $311,528, from $403,200, to a new payment limit of $714,728, and extend the termination date from April 30, 2017 to December 31, 2017. FISCAL IMPACT: This contract is funded 100% by Contra Costa Cares Program: 33% County, 17% CCHP Enterprise Fund II, 50% other hospital entities. (No rate increase) BACKGROUND: On November 17, 2015, the Board of Supervisors approved Contract #77-002, with Lifelong Medical Care, for the provision of primary care medical services for the Contra Costa Cares Program, for the period from November 1, 2015 through April 30, 2017. Approval of Contract Amendment/Extension Agreement #77-002-1 will allow the Contractor to continue providing primary care services through December 31, 2017. CONSEQUENCE OF NEGATIVE ACTION: If this amendment is not approved, low income, uninsured adults would not have access to primary care services in Contra Costa County. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd, M Wilhelm C. 80 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Amendment/Extension #77-002-1 with Lifelong Medical Care CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): ADOPT Resolution No. 2016/668 accepting as complete, the contracted work performed by Demolition Services and Grading, Inc., for the demolition of Assessor’s Parcel Nos. 517-320-018 and 517-320-019, also identified as 3939 Bissell Avenue in Richmond, as recommended by the Public Works Director. DIRECT the Real Estate Division of the Public Works Department to record a certified copy of the Resolution in the office of the County Clerk-Recorder. (Project No.:0080-WLP130) FISCAL IMPACT: 100% General Fund. Costs for demolition funded with Minor Building Improvement funds and to be recovered with proceeds from the sale of the lot. BACKGROUND: The Public Works Director reports that said work has been inspected and complies with the special provisions and standard specifications and recommends its acceptance as completed as of November 9, 2016, for Assessor’s Parcel Nos. 517-320-018 and 517-320-019, also identified as 3939 Bissell Avenue in Richmond. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jewel Lopez, (925) 313-2191 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 81 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:Accepting and Giving Notice of Completion for Demolition Contract, 3939 Bissell Avenue, Richmond CONSEQUENCE OF NEGATIVE ACTION: Demolition Services and Grading, Inc., will not be paid and acceptance notification will not be recorded. ATTACHMENTS Resolution No. 2016/668 Recorded at the request of:Jewel Lopez, (925) 313-2191 Return To:Jewel Lopez, Real Estate Division (925)313-2191 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/668 IN THE MATTER OF Accepting and Giving Notice of Completion for Demolition of Assessor’s Parcel Numbers 517-320-018 and 517-320-019, also identified as 3939 Bissell Avenue in Richmond. Project No.: 0080-WLP130. WHEREAS the County of Contra Costa on November 2, 2016 issued a Notice to Proceed to Demolition Services and Grading, Inc., for the abatement and demolition work to be performed on the ground of Contra Costa County property; and WHEREAS the Public Works Director reports that said work has been inspected and complies with the approved special provisions and standand specifications and recommends its acceptance as complete as of November 9, 2016. NOW, THEREFORE, BE IT RESOLVED said work is ACCEPTED as complete on said date, and the Real Estate Division of Public Works shall file with the County Clerk-Recorder a copy of this Resolution and Notice as a Notice of Completion for said contract. Contact: Jewel Lopez, (925) 313-2191 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract #23-461-7 with Via, Inc., a corporation, in an amount not to exceed $500,000, to provide translation of written documents to County’s Health Services Department for the period from December 1, 2016 through November 30, 2019. FISCAL IMPACT: This Contract is funded 100% Hospital Enterprise Fund I. (Rate Increase) BACKGROUND: In January 2014, the County Administrator approved and the Purchasing Services Manager executed, Contract #23-461-4 with Via, Inc. (formerly known as Vialanguage, Inc.) (as amended by Amendment/Extension Agreement #23-461-5, and Amendment Agreement #23-461-6), for the provision of language translation of written documents to County’s Health Services Department for the period from December 1, 2013 through November 30, 2016. Approval of Contract #23-461-7 will allow Contractor to continue providing written language translation services to County’s Health Services Department through November 30, 2019. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, patients requiring written translation services will not have access to Contractor’s services. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: William Walker, M.D., 925-957-5403 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: K Cyr, M Wilhelm C. 82 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #23-461-7 with Via, Inc. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract #76-507-14 with Lee A. Shratter, M.D., A Professional Corporation, in an amount not to exceed $900,000, to provide radiology services at Contra Costa Regional Medical Center and Contra Costa Health Centers (CCRMC), for the period from January 1, 2017 through December 31, 2019. FISCAL IMPACT: This Contract is funded 100% Hospital Enterprise Fund I. (No rate increase) BACKGROUND: On February 4, 2014, the Board of Supervisors approved Contract #76-507-13 with Lee A. Shratter, M.D., A Professional Corporation, for the provision of radiology services including consultation, on-call coverage and interpretation of CT Scans, MRIs, ultrasounds, invasive procedures and plain films for CCRMC, for the period from January 1, 2014 through December 31, 2016. Approval of Contract #76-507-14 will allow Contractor to continue providing radiology services through December 31, 2019. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, patients requiring radiology services will not have access to Contractor’s services. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Samir Shah, M.D., 925-370-5525 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: K Cyr, M Wilhelm C. 83 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #76-507-14 with Lee A. Shratter, M.D., A Professional Corporation CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract #23–274–12 with Echo Consulting Services of California, Inc., a corporation, in an amount not to exceed $1,900,000, to provide hardware, software, maintenance, and implementation services for vendor’s Echo Sharecare System for the Behavioral Health Division’s billing system, for the period from December 15, 2016 through June 30, 2019. FISCAL IMPACT: This Contract is funded 100% by Hospital Enterprise Fund I. BACKGROUND: Since 1999, the Department has used the Echo INSYST System to process the Department’s Behavioral Health Divisions’ client registrations, service charges, billing, accounts receivable, and scheduling functions. This product will replace the Insyst system with the Echo Sharecare System. Approval of Contract #23–274–12 will allow the Contractor to continue providing services through June 30, 2019. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: David Runt, 925-335-8700 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm C. 84 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #23–274–12 with Echo Consulting Services of California, Inc. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, the Behavioral Health Division would not be able to process client registrations, services charges, billing, accounts receivables and scheduling functions as efficiently. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract amendment with International Business Machines Corporation to increase the payment limit by $150,000 from $115,000 to a new payment limit of $265,000 and to extend the term of the contract from July 29, 2014 through July 28, 2015 to a new term of July 29, 2014 through December 31, 2019. This will allow for continued database software and integration services. (100% Client Usage Fees ARIES funding through Alameda County). FISCAL IMPACT: ARIES East-Bay Data Warehouse data - IBM Coplink funding of an additional $150,000, no County cost. BACKGROUND: COPLINK is law enforcement software that manages databases to consolidate data from many law enforcement sources, aid collaboration and help generate tactical leads. COPLINK enables law enforcement professionals to generate photo lineups, save their search history and organize investigations to generate reports more easily. COPLINK is modular police software that can be tailored with additional crime-fighting tools to address users’ specific needs for improved APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown, 925-335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 85 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:ARIES East-Bay Data Warehouse data - IBM Coplink BACKGROUND: (CONT'D) crime-solving capabilities. The County’s ARIES regional law enforcement database aggregates law enforcement data from 35 agencies. Under the contract, IBM’s software will migrate certain data from the ARIES database to a newly created ARIES East Bay Node for COPLINK. Law enforcement agencies using COPLINK will have the ability to access crime data from the ARIES East Bay Node for COPLINK database. ARIES users will continue to access and use crime data in the ARIES database. CONSEQUENCE OF NEGATIVE ACTION: Failure to approve the contract would mean that certain ARIES database data would not be available to COPLINK users. CHILDREN'S IMPACT STATEMENT: N/A RECOMMENDATION(S): Approve and authorize the Purchasing Agent, on behalf of the Health Services Department, to execute a Purchase Order with R-Computer, LLC. in an amount not to exceed $113,500, for annual IBM software maintenance and support renewal for the period January 1, 2017 through December 31, 2017. FISCAL IMPACT: 100% Funding is included in the Hospital Enterprise Fund I Budget. BACKGROUND: The Health Services Department has used IBM Lotus Notes email for the past 15 years. This is an annual renewal of our IBM Lotus Notes email user licenses and support. R-Computer is the local IBM reseller of Lotus Notes licenses and application support. CONSEQUENCE OF NEGATIVE ACTION: If this Purchase Order is not approved, the email system will not be covered under maintenance which will terminate our support with IBM. We would not be able to provide proper troubleshooting, upgrades, and assistance for our users. CHILDREN'S IMPACT STATEMENT: Not applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: David Runt, 925-335-8700 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm, David Runt C. 86 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Purchase Order with R-Computer for IBM Lotus Notes Licenses and Support RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, Contract Amendment Agreement #72-086-2 with Bright Path Therapists, a corporation, effective December 1, 2016, to amend Contract #72-086-1, to increase the payment limit by $100,000, from $100,000 to a new payment limit of $200,000, with no change in the original term of July 1, 2016 through June 30, 2017. FISCAL IMPACT: This amendment is funded 50% State California Children’s Services and 50% County funds. (No rate increase) BACKGROUND: In May 2016, the County Administrator approved and the Purchasing Services Manager executed, Contract #72-086-1 for the period from July 1, 2016 through June 30, 2017 for the provision of medically necessary occupational therapy and physical therapy services to children eligible for the California Children’s Services Medical Therapy Program. Approval of Contract Amendment Agreement #72-086-2 will allow the Contractor to provide additional services to County clients through June 30, 2017. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Dan Peddycord, 925-313-6712 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: D MORGAN , M WILHELM C. 87 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Amendment #72-086-2 with Bright Path Therapists CONSEQUENCE OF NEGATIVE ACTION: If this amendment is not approved, clients will have reduced services for occupational therapy and physical therapy services to children eligible for California Children’s Services Medical Therapy Program. CHILDREN'S IMPACT STATEMENT: This program supports the following Board of Supervisors’ community outcomes: "(1) Children Ready For and Succeeding in School”; "(4) Families that are Safe, Stable, and Nurturing”; and “(5) Communities that are Safe and Provide a High Quality of Life for Children and Families”. Expected program outcomes include an increase in positive social and emotional development as measured by the Child and Adolescent Functional Assessment Scale (CAFAS). RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract amendment with Synesis Inc., to increase the payment limit by $50,000, from $250,000 to a new payment limit of $300,000, and to extend the term of the contract from May 12, 2015 to November 30, 2016 to a new term of May 12, 2015 through November 30, 2017 for continued programming, database mapping and maintenance services for the Automated Regional Information Exchange System (ARIES). FISCAL IMPACT: Urban Areas Security Initiative (UASI) Grant Funding of up to $250,000; remaining $50,000 ARIES Funding. BACKGROUND: The Automated Regional Information Exchange System (ARIES) is a software application owned by Contra Costa County, and used by County and other law enforcement agencies to manage arrest and parolee data collected from law enforcement agencies. ARIES manages arrest and parole data provided by local law enforcement agencies that is stored on a County server. The purpose of this Contract is for Contractor to provide computer programming, database mapping, and maintenance APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown, 925-335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 88 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Synesis Inc. BACKGROUND: (CONT'D) services to the Sheriff's Office. ARIES is attempting to populate the East Bay Data warehouse with data from Alameda County and Solano County. Contractor's services will include consultation, design, development, programming services, and maintenance and support for the Automated Regional Information Exchange System (ARIES). Contractor will update ARIES so that participating agency's data can be mapped to ARIES and used by ARIES participants. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved dozens of agency's will not be able to send and share their arrest and parole data to the ARIES East Bay data warehouse. CHILDREN'S IMPACT STATEMENT: No impact. RECOMMENDATION(S): APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract with Marvell C. Allen, DBA Millennium Career Advantage, in an amount not to exceed $163,200, to provide leadership development services for the period January 1, 2017 through September 30, 2017. (45% Federal, 47% State, 8% County) FISCAL IMPACT: $163,200: 100% Administrative Overhead (45% Federal, 47% State, 8% County) BACKGROUND: Marvell C. Allen, DBA Millennium Career Advantage, provides organizational learning, coaching, and leadership development programs in the public and private sector, these programs develop leadership and management professional skills to diverse audiences and in different geographies. Additionally, Marvell C. Allen, DBA Millennium Career Advantage, has executive and senior level coaching experience. Employment APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: V. Kaplan, 925-313-1514 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 89 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Contract with Marvell C. Allen DBA Millennium Career Advantage BACKGROUND: (CONT'D) and Human Services Department (EHSD) has experienced significant turnover at the manager and supervisor levels of the organization with the onset of the retiring baby boomers, changes in the retirement pension regulations, and the normal attrition cycles. The turnover has resulted in a new cohort of staff who would benefit from leadership development. In August 2015, EHSD awarded a contract under Request for Information (RFI) #570 to Marvell C. Allen, DBA Millennium Career Advantage, to provide consulting, facilitation and training services with the final product being the creation of a Leadership Academy or Leadership Development Program that will raise the caliber of leadership skills of EHSD employees. Marvell C. Allen, DBA Millennium Career Advantage, has successfully completed seven modules of the Leadership Academy 1 project. This Board Order is requesting Board approval for additional training services for the eighth module and final wrap-up session of the Leadership Academy 1 project and a Leadership Academy 2 project to include four phases: 1) Road Map, 2) Design, 3) Development, and 4) Delivery. The project includes a best practice approach for leadership techniques and skill building. It incorporates real time learning with multiple data and checkpoints to promote participants learning to their full potential. CONSEQUENCE OF NEGATIVE ACTION: A comprehensive leadership training program providing leadership development to EHSD Management staff will not be delivered. Furthermore, EHSD may lack employees with the necessary knowledge and skills to take on leadership roles. RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Ron Haver in an amount not to exceed $30,000 for helicopter pilot services for the period January 1, 2017 through December 31, 2017. FISCAL IMPACT: $30,000.00. Budgeted. No General Fund impact. These expenditures are covered by a combination of agency user fees, annual SLESF (Supplemental Law Enforcement Services Fund) allocation, P-6 Central Administrative Base (Zone) revenue, and indirectly offset by State of California Department of Boating and Waterways grant funding. BACKGROUND: Under this contract, Ron Haver will provide pilot services for the Sheriff's helicopters. The helicopter program is an integral element of effective law enforcement operations, providing enhanced patrol, surveillance, and search and rescue capabilities. Continuation of the helicopter program hinges on the services provided under this contract. CONSEQUENCE OF NEGATIVE ACTION: Failure to approve this contract would ground the helicopter and deprive the citizens of Contra Costa County of a vital law enforcement tool. This would limit the Office of the Sheriff to adequately respond to law enforcement emergencies in any terrain, throughout the County. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown 925-335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 90 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Contract with Ron Haver for helicopter pilot services CHILDREN'S IMPACT STATEMENT: No impact. RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Human Resources, or designee, to execute an Administrative Services Agreement including modified indemnification language with Kaiser Foundation Health Plan Inc., for the purpose of offering a Health Savings Account to employees enrolled in the Kaiser High Deductible Health Plan (HDHP) beginning January 1, 2017 and ending December 31, 2017. FISCAL IMPACT: No County match. Enrollment in this plan is voluntary. The cost of this benefit is employee paid. BACKGROUND: On October 18, 2016 the Board of Supervisors adopted a series of Resolutions regarding Side Letters between Contra Costa County and various unions to offer a Health Savings Account (HSA). The Health Savings Account allows employees enrolled in the Kaiser High Deductible Health Plan to save money for the purpose of paying out of pocket expenses including deductibles, co-pays and co-insurance. This action authorizes the establishment of an agreement with the Kaiser Foundation Health Plan to provide administrative services necessary to implement this plan. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ann Elliott, (925) 335-1747 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Ann Elliott, Nancy Zandonella C. 91 To:Board of Supervisors From:Dianne Dinsmore, Human Resources Director Date:December 6, 2016 Contra Costa County Subject:Administrative Services Agreement contract with Kaiser Foundation Health Plan CONSEQUENCE OF NEGATIVE ACTION: If the contract is not approved the County will not be able to offer the Health Savings Account (HSA) as negotiated with the Unions and employees will not have a tax-advantaged account available to save money for their out of pocket health plan expenses. RECOMMENDATION(S): APPROVE and AUTHORIZE the Director of Human Resources, or designee, to execute a contract, including modified indemnification language, with Vision Service Plan (VSP), for a voluntary vision plan for employees and their dependents. This contract will be in effect for 24 months beginning January 1, 2017 and ending December 31, 2018. FISCAL IMPACT: No County match. Enrollment in this plan is voluntary. The cost of this benefit is employee paid. BACKGROUND: On October 18, 2016 The Board of Supervisors adopted a series of Resolutions regarding Side Letters between Contra Costa County and various unions to offer a Voluntary Vision Plan. This contract will allow Vision Service Plan (VSP) to provide these benefits. CONSEQUENCE OF NEGATIVE ACTION: If the contract is not approved the County will not be able to offer the Voluntary Vision Plan as negotiated with the Unions. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ann Elliott, (925) 335-1747 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Ann Elliott, Nancy Zandonella C. 92 To:Board of Supervisors From:Dianne Dinsmore, Human Resources Director Date:December 6, 2016 Contra Costa County Subject:Contract with Vision Service Plan (VSP) RECOMMENDATION(S): Approve and authorize the Health Services Director, or designee, to execute on behalf of the County, Contract #27-594-7 with Steven A. Harrison, M.D., APC, a corporation, in an amount not to exceed $650,000, to provide ophthalmology services for Contra Costa Health Plan members, for the period from December 1, 2016 through November 30, 2018. FISCAL IMPACT: This Contract is funded 100% Contra Costa Health Plan Enterprise Fund II. (No rate increase) BACKGROUND: On January 6, 2015, the Board of Supervisors approved Contract #27-594-6 with Steven Harrison, M.D., for the period from December 1, 2014 through November 30, 2016, to provide ophthalmology services to Contra Costa Health Plan members. Approval of Contract #27-594-7 will allow the Contractor to continue to provide ophthalmology services through November 30, 2018. CONSEQUENCE OF NEGATIVE ACTION: If this contract is not approved, certain specialized professional health care services for its members under the terms of their Individual and Group Health Plan membership contracts with the County will not be provided. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Patricia Tanquary 925-313-6004 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: A Floyd, M Wilhelm C. 93 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Contract #27-594-7 with Steven A. Harrison, M.D., APC CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): APPROVE the updated In-Home Supportive Services Public Authority Advisory Committee Policies and Procedures as recommended by the Employment and Human Services Director. FISCAL IMPACT: Not applicable. BACKGROUND: The In-Home Supportive Services Public Authority Advisory Committee Policies and Procedures have been revised to provide clarity to the definition of the Advisory Committee Policies and Procedures and refine the document formatting. CONSEQUENCE OF NEGATIVE ACTION: The Public Authority Advisory Committee Policies and Procedures would not accurately reflect the Committee's activities. CHILDREN'S IMPACT STATEMENT: Not applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Jan Watson, 925-363-6671 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 94 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:APPROVE the updated In-Home Supportive Services Pubiic Authority Advisory Committee Policies and Procedures ATTACHMENTS IHSS PA AC redline P & Ps IHSS PA AC final P & Ps Contra Costa County IHSS Public Authority Advisory Committee Policies and Procedures Adopted 3/1999; Revised 9/2016 1 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 1 Advisory Committee Role and Duties Advisory Committee Role The primary role of the Advisory Committee is to serve in an advisory capacity to the Public Authority Governing Board (Board), Public Authority staff and the administrators of In-Home Supportive Services (IHSS). Advisory Committee Mission Statement The Mission of the Public Authority Advisory Committee is to provide advice and assistance to the Board, staff of the Public Authority and IHSS; and to provide a forum for discussion for consumers of personal assistance services, providers, advocates and other interested parties to participate in Public Authority policy and program development. Committee Members’ Statement of Duties 1. Attend scheduled Advisory Committee meetings and any assigned sub-committee meetings. 2. Stay informed/educated on IHSS Public Authority issues. 3. Provide consumer and provider input to IHSS 4. Advise and make recommendations to the Board on issues regarding Public Authority policy, program development, activities, services and budget. The Committee will strive to build consensus, when possible. 5. Participate in community outreach, educational activities and the exploration of alternative funding sources. 6. Review, advise and make recommendations to the Board on pending state legislation and budget that may impact the IHSS program, consumers, providers, and/or Public Authorities. 2 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee 7. With notification to the Board, engage in advocacy activities related to IHSS consumer and provider issues. 8. Hear appeals and make final decisions regarding removal of providers or consumers from the Registry. 9. Adhere to SPERO Ground Rules. 10. Public Authority Advisory Committee members will solicit input from consumers, providers and others in the community who have an interest in the IHSS program and the Public Authority. Adopted 3/1999; Revised 9/2016 3 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 2 Membership on Advisory Committee The Advisory Committee shall consist of 11 members, each of whom is a resident of Contra Costa County. The members are appointed by the Board of Supervisors. CONSUMER SEATS Membership shall include six (6) consumers: a) Consumer members shall be individuals who are current or past users of personal assistance services paid for through public or private funds; b) At least 50 percent of consumer members shall be current users of IHSS; c) At a minimum, two consumer members will be 60 years of age or older; two consumer members will be under 60 years of age; and two consumers will be either over or under 60 years of age. SUPERVISORIAL DISTRICT SEATS Each Supervisor shall nominate one member. The members shall be chosen from one of the categories below: a) Senior advocate b) Advocate for younger persons with disabilities c) Representative from developmental disability community 4 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee d) Social worker e) Nurse f) Representative from community-based organization g) Representative from a home health agency h) Current or previous IHSS provider i) Other category related to In-Home Supportive Services and/or the senior or disabled community Adopted 3/1999; Revised 9/2016 5 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 3 Attendance Policy Policy The Committee, by an affirmative vote of two-thirds of the members constituting the Committee may recommend to the Board replacement of a Committee member if he or she: 1) Has been neglectful of duties, as determined (and documented) by the Committee (refer to Advisory Committee Statement of Duties);or 2) Has missed a total of four scheduled Committee meetings annually; or 3) No longer satisfies the requirements necessary to represent the constituency he or she was appointed to serve. Procedure 1) Following roll call, absences will be recorded in the Committee minutes. 2) It is the responsibility of Advisory Committee members to notify PA Staff of their absence prior to an Advisory Committee meeting. 3) It is the responsibility of Advisory Committee members to sign the attendance sheet at each meeting. 6 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 4 Meeting Ground Rules The Committee adopts the SPERO Ground Rules for Committee use: Sensitivity Treat each other with respect Value diversity of opinions Listen for others’ perspectives Set aside judging and censoring others and yourself Disagree respectfully Maintain confidentiality about things others share Participation Everyone has a chance to participate without monopolizing and without interruption Speakers will be given full attention without side conversations Experience Stay focused on our goal Say what you think when you think it Speak from your heart and from your own experience rather than about theory or others’ experiences Keep a sense of humor Responsibility Start and end the meetings on time Be a working member of the Committee Show up – be present Be prepared – read materials in advance of the meeting Report meeting activities with honesty and fairness Take responsibility for asking for what you need Openness Identify turf issues as they arise Be open to be influenced Be open to be surprised Adopted 3/1999; Revised 9/2016 7 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 5 Terms of Office In October of each year, the Nominating Committee will provide to the Advisory Committee a list of nominees for Chair and Vice Chair. Nominations will be solicited from the floor at the October and November Advisory Committee meetings. In November, the Advisory Committee will vote on the new Chair and Vice Chair positions. The new Chair and Vice Chair will take office the following January. Chair and Vice Chair’s term of office shall be for one year, which will run concurrently. Officers may be re-elected for two additional terms for a total of three consecutive years. A member can be re-elected to a previously held office after having not served in the position for at least one year. In the event of a vacancy, the new officer(s) can assume the officer role for the remainder of the existing term, hold office for another full year, which will run consecutively and may be re-elected for two additional terms for a total of three consecutive years plus the fulfillment of the vacancy. 8 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 6 Officers’ Duties and Responsibilities To achieve its full potential, the Advisory Committee must have an effective Chairperson and Vice Chairperson whose primary task is to create and maintain a spirit of unity among diverse people on the Committee and to ensure that it functions appropriately. Chairperson Duties and Responsibilities Advises Executive Director on meeting agendas, Committee procedure and process, and on issues affecting the overall program Chairs all Advisory Committee meetings Enforces the Advisory Committee’s ground rules and procedures Ensures that the Advisory Committee and subcommittees function appropriately Ensures that individual Advisory Committee members receive adequate orientation/training Selects and supervises subcommittee chairs Is an ex-officio member of all sub-committees Vice-Chairperson Duties and Responsibilities Is consistently informed about all Committee issues, Committee procedure and process, selecting & supervising subcommittee chairs, and on issues affecting the overall program Assists the Chairperson in all aspects of the Chairperson’s position including: Advising Executive Director on meeting agendas; Ensuring that the Committee and subcommittees function appropriately; Ensuring that individual Committee members receive adequate orientation/training. Serves as Chairperson when the Chairperson is absent or unable to serve Adopted 3/1999; Revised 9/2016 9 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 7 Procedure on Public Comment The following are based on the Ralph M. Brown Act (Cal. Gov. Code sections 54950, et seq.) and the Contra Costa County Better Government Ordinance. 1. The General Comment Period is to be used by the public to address items not on the agenda, but within the purview of the Advisory Committee. 2. Following opening discussion of agenda items by Advisory Committee members, the Chair will call for public comment on the item before any vote is taken. a) This period is the only opportunity members of the public will have to comment on a particular agenda item; and b) It will be the Chair’s prerogative to limit an individual to one comment on each agenda item being addressed, and to limit the comment to a maximum of three minutes, should the Chair feel this is in the best interest of conducting Advisory Committee business. 10 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 8 Process for Public Authority Contracting 1. Prior to the issuance of a Request for Proposals (RFP) or Request for Interest (RFI), the Advisory Committee will have involvement in the design of program operations. 2. Public Authority staff issues RFP or RFI. 3. Public Authority staff reviews responses to RFP and selects contractor. 4. EHSD Contract Unit develops the standard contract language. 5. Public Authority staff, in conjunction with the Advisory Committee, develops the service plan. 6. Proposed Contract and Board Order are submitted to County Administrative Office for inclusion on Board agenda. 7. Board considers contract. Adopted 3/1999; Revised 9/2016 11 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 9 Public Authority/Union Collaboration One of the express purposes of the Authority is to give consumers an advisory role relative to IHSS policy, program development, activities, services, and budget. In order to further Advisory Committee goals, Union representatives will be invited to attend Advisory Committee meetings, to discuss ways in which to collaborate. 12 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 10 Advisory Committee Structure Current Standing and Ad Hoc Subcommittees, Purpose and Membership 1. Standing Committee: Health, Safety and Education Subcommittee Purpose: To review and make recommendations regarding issues related to consumer and provider health and safety; to assist in designing provider and consumer training activities; and to assist in developing and providing outreach and educational activities. 2. Standing Committee: Nominating Subcommittee Purpose: The Nominating Committee shall be actively involved in the recruitment and orientation of new members to the Advisory Committee. In addition, the Public Authority Secretary will work with staff to implement the orientation process for new members. In October of each year, the Nominating Committee will provide to the Advisory Committee a list of nominees for Chair and Vice Chair. (See Policy 5.) 3. Standing Committee: Rapid Response Subcommittee Purpose: The Rapid Response Committee shall review the Rapid Response Program and make recommendations for its improvement. 4. Standing Committee: Advocacy Subcommittee Purpose: The Advocacy Committee shall develop and make advocacy recommendations to the Advisory Committee on issues concerning IHSS recipients and providers. Advocacy activities must be approved by the Board of Supervisors. Adopted 3/1999; Revised 9/2016 13 of 17 Contra Costa County IHSS Public Authority  Advisory Committee All Standing and all ad hoc subcommittees will meet the following requirements: In accordance with the Brown Act and Contra Costa County Better Government ordinance 1) provide 96 hour notice with agenda and packet; 2) post meeting agendas 96 hours in advance, and 3) provide time for public comment at the meetings. A quorum has to be present for the subcommittee to meet and take action. A quorum will be a majority, calculated as 50% plus one of the seats on the particular subcommittee. Subcommittee members must be appointed to the subcommittee; subcommittee members are appointed by action of the Advisory Committee and must be members of the Advisory Committee. While interested parties (other than Advisory Committee members appointed to the subcommittee) can attend subcommittee meetings, they are not subcommittee members and they cannot vote on items before the subcommittee. Only the appointed Advisory Committee members can vote on items before the subcommittee; when the subcommittee wants to bring a recommendation forward to the full Advisory Committee, the subcommittee shall take formal action (motion, second, vote and record the vote), write up the action, and bring it to the full Advisory Committee for consideration. Standing subcommittee – Definition: Standing subcommittees are developed to address ongoing issues; have a standing membership; and generally meet on a regularly scheduled basis. Membership: A minimum of three Advisory Committee members. 14 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Membership Appointment: Members are appointed by formal action of the Advisory Committee. The Chairperson of the Advisory Committee appoints the subcommittee Chairperson. Membership Terms: Members and Chairperson will serve one- year terms. There is no limit on the number of terms a member or Chairperson can serve. Absence Policy The same absence and removal policy approved for the full Advisory Committee would apply. Sub-committee and Advisory Committee absences would not be combined. Meeting Schedule: Standing committees will meet on a regularly scheduled basis. Committee members will determine the meeting schedule. Ad hoc subcommittees – Definition: Ad hoc subcommittees are developed to address specific, time-limited tasks; have an appointed membership; and disband after the specific task is accomplished. Membership: A minimum of three Advisory Committee members. Membership Appointment: Members are appointed by formal action of the Advisory Committee. The Chairperson of the Advisory Committee appoints the ad hoc subcommittee Chairperson. Membership Terms: Members and Chairperson will serve on an as needed basis, i.e., until the specific task is accomplished. There is no limit on the number of times a member or Chairperson can serve. Adopted 3/1999; Revised 9/2016 15 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Absence Policy: The same absence and removal policy approved for the full Advisory Committee would apply. Ad hoc and Advisory Committee absences would not be combined. Meeting Schedule: As needed. Contra Costa County IHSS Public Authority 500 Ellinwood Way. Suite 110 Pleasant Hill, CA 94523 Contra Costa County IHSS Public Authority Advisory Committee Policies and Procedures Adopted 3/1999; Revised 9/2016 1 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 1 Advisory Committee Role and Duties Advisory Committee Role The primary role of the Advisory Committee is to serve in an advisory capacity to the Public Authority Governing Board (Board), Public Authority staff and the administrators of In-Home Supportive Services (IHSS). Advisory Committee Mission Statement The Mission of the Public Authority Advisory Committee is to provide advice and assistance to the Board, staff of the Public Authority and IHSS; and to provide a forum for discussion for consumers of personal assistance services, providers, advocates and other interested parties to participate in Public Authority policy and program development. Committee Members’ Statement of Duties 1. Attend scheduled Advisory Committee meetings and any assigned sub-committee meetings. 2. Stay informed/educated on IHSS Public Authority issues. 3. Provide consumer and provider input to IHSS 4. Advise and make recommendations to the Board on issues regarding Public Authority policy, program development, activities, services and budget. The Committee will strive to build consensus, when possible. 5. Participate in community outreach, educational activities and the exploration of alternative funding sources. 6. Review, advise and make recommendations to the Board on pending state legislation and budget that may impact the IHSS program, consumers, providers, and/or Public Authorities. 2 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee 7. With notification to the Board, engage in advocacy activities related to IHSS consumer and provider issues. 8. Hear appeals and make final decisions regarding removal of providers or consumers from the Registry. 9. Adhere to SPERO Ground Rules. 10. Public Authority Advisory Committee members will solicit input from consumers, providers and others in the community who have an interest in the IHSS program and the Public Authority. Adopted 3/1999; Revised 9/2016 3 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 2 Membership on Advisory Committee The Advisory Committee shall consist of 11 members, each of whom is a resident of Contra Costa County. The members are appointed by the Board of Supervisors. CONSUMER SEATS Membership shall include six (6) consumers: a) Consumer members shall be individuals who are current or past users of personal assistance services paid for through public or private funds; b) At least 50 percent of consumer members shall be current users of IHSS; c) At a minimum, two consumer members will be 60 years of age or older; two consumer members will be under 60 years of age; and two consumers will be either over or under 60 years of age. SUPERVISORIAL DISTRICT SEATS Each Supervisor shall nominate one member. The members shall be chosen from one of the categories below: a) Senior advocate b) Advocate for younger persons with disabilities c) Representative from developmental disability community 4 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee d) Social worker e) Nurse f) Representative from community-based organization g) Representative from a home health agency h) Current or previous IHSS provider i) Other category related to In-Home Supportive Services and/or the senior or disabled community Adopted 3/1999; Revised 9/2016 5 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 3 Attendance Policy Policy The Committee, by an affirmative vote of two-thirds of the members constituting the Committee may recommend to the Board replacement of a Committee member if he or she: 1) Has been neglectful of duties, as determined (and documented) by the Committee (refer to Advisory Committee Statement of Duties);or 2) Has missed a total of four scheduled Committee meetings annually; or 3) No longer satisfies the requirements necessary to represent the constituency he or she was appointed to serve. Procedure 1) Following roll call, absences will be recorded in the Committee minutes. 2) It is the responsibility of Advisory Committee members to notify PA Staff of their absence prior to an Advisory Committee meeting. 3) It is the responsibility of Advisory Committee members to sign the attendance sheet at each meeting. 6 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 4 Meeting Ground Rules The Committee adopts the SPERO Ground Rules for Committee use: Sensitivity • Treat each other with respect • Value diversity of opinions • Listen for others’ perspectives • Set aside judging and censoring others and yourself • Disagree respectfully • Maintain confidentiality about things others share Participation • Everyone has a chance to participate without monopolizing and without interruption • Speakers will be given full attention without side conversations Experience • Stay focused on our goal • Say what you think when you think it • Speak from your heart and from your own experience rather than about theory or others’ experiences • Keep a sense of humor Responsibility • Start and end the meetings on time • Be a working member of the Committee • Show up – be present • Be prepared – read materials in advance of the meeting • Report meeting activities with honesty and fairness • Take responsibility for asking for what you need Adopted 3/1999; Revised 9/2016 7 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Openness • Identify turf issues as they arise • Be open to be influenced • Be open to be surprised 8 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 5 Terms of Office In October of each year, the Nominating Committee will provide to the Advisory Committee a list of nominees for Chair and Vice Chair. Nominations will be solicited from the floor at the October and November Advisory Committee meetings. In November, the Advisory Committee will vote on the new Chair and Vice Chair positions. The new Chair and Vice Chair will take office the following January. Chair and Vice Chair’s term of office shall be for one year, which will run concurrently. Officers may be re-elected for two additional terms for a total of three consecutive years. A member can be re-elected to a previously held office after having not served in the position for at least one year. In the event of a vacancy, the new officer(s) can assume the officer role for the remainder of the existing term, hold office for another full year, which will run consecutively and may be re-elected for two additional terms for a total of three consecutive years plus the fulfillment of the vacancy. Adopted 3/1999; Revised 9/2016 9 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 6 Officers’ Duties and Responsibilities To achieve its full potential, the Advisory Committee must have an effective Chairperson and Vice Chairperson whose primary task is to create and maintain a spirit of unity among diverse people on the Committee and to ensure that it functions appropriately. Chairperson Duties and Responsibilities • Advises Executive Director on meeting agendas, Committee procedure and process, and on issues affecting the overall program • Chairs all Advisory Committee meetings • Enforces the Advisory Committee’s ground rules and procedures • Ensures that the Advisory Committee and subcommittees function appropriately • Ensures that individual Advisory Committee members receive adequate orientation/training • Selects and supervises subcommittee chairs • Is an ex-officio member of all sub-committees Vice-Chairperson Duties and Responsibilities • Is consistently informed about all Committee issues, Committee procedure and process, selecting & supervising subcommittee chairs, and on issues affecting the overall program • Assists the Chairperson in all aspects of the Chairperson’s position including: Advising Executive Director on meeting agendas; Ensuring that the Committee and subcommittees function appropriately; Ensuring that individual Committee members receive adequate orientation/training. • Serves as Chairperson when the Chairperson is absent or unable to serve 10 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 7 Procedure on Public Comment The following are based on the Ralph M. Brown Act (Cal. Gov. Code sections 54950, et seq.) and the Contra Costa County Better Government Ordinance. 1. The General Comment Period is to be used by the public to address items not on the agenda, but within the purview of the Advisory Committee. 2. Following opening discussion of agenda items by Advisory Committee members, the Chair will call for public comment on the item before any vote is taken. a) This period is the only opportunity members of the public will have to comment on a particular agenda item; and b) It will be the Chair’s prerogative to limit an individual to one comment on each agenda item being addressed, and to limit the comment to a maximum of three minutes, should the Chair feel this is in the best interest of conducting Advisory Committee business. Adopted 3/1999; Revised 9/2016 11 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 8 Process for Public Authority Contracting 1. Prior to the issuance of a Request for Proposals (RFP) or Request for Interest (RFI), the Advisory Committee will have involvement in the design of program operations. 2. Public Authority staff issues RFP or RFI. 3. Public Authority staff reviews responses to RFP and selects contractor. 4. EHSD Contract Unit develops the standard contract language. 5. Public Authority staff, in conjunction with the Advisory Committee, develops the service plan. 6. Proposed Contract and Board Order are submitted to County Administrative Office for inclusion on Board agenda. 7. Board considers contract. 12 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 9 Public Authority/Union Collaboration One of the express purposes of the Authority is to give consumers an advisory role relative to IHSS policy, program development, activities, services, and budget. In order to further Advisory Committee goals, Union representatives will be invited to attend Advisory Committee meetings, to discuss ways in which to collaborate. Adopted 3/1999; Revised 9/2016 13 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Advisory Committee Policy 10 Advisory Committee Structure Current Standing and Ad Hoc Subcommittees, Purpose and Membership 1. Standing Committee: Health, Safety and Education Subcommittee Purpose: To review and make recommendations regarding issues related to consumer and provider health and safety; to assist in designing provider and consumer training activities; and to assist in developing and providing outreach and educational activities. 2. Standing Committee: Nominating Subcommittee Purpose: The Nominating Committee shall be actively involved in the recruitment and orientation of new members to the Advisory Committee. In addition, the Public Authority Secretary will work with staff to implement the orientation process for new members. In October of each year, the Nominating Committee will provide to the Advisory Committee a list of nominees for Chair and Vice Chair. (See Policy 5.) 3. Standing Committee: Rapid Response Subcommittee Purpose: The Rapid Response Committee shall review the Rapid Response Program and make recommendations for its improvement. 4. Standing Committee: Advocacy Subcommittee Purpose: The Advocacy Committee shall develop and make advocacy recommendations to the Advisory Committee on issues concerning IHSS recipients and providers. Advocacy activities must be approved by the Board of Supervisors. 14 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee All Standing and all ad hoc subcommittees will meet the following requirements: • In accordance with the Brown Act and Contra Costa County Better Government ordinance 1) provide 96 hour notice with agenda and packet; 2) post meeting agendas 96 hours in advance, and 3) provide time for public comment at the meetings. • A quorum has to be present for the subcommittee to meet and take action. A quorum will be a majority, calculated as 50% plus one of the seats on the particular subcommittee. • Subcommittee members must be appointed to the subcommittee; subcommittee members are appointed by action of the Advisory Committee and must be members of the Advisory Committee. • While interested parties (other than Advisory Committee members appointed to the subcommittee) can attend subcommittee meetings, they are not subcommittee members and they cannot vote on items before the subcommittee. • Only the appointed Advisory Committee members can vote on items before the subcommittee; when the subcommittee wants to bring a recommendation forward to the full Advisory Committee, the subcommittee shall take formal action (motion, second, vote and record the vote), write up the action, and bring it to the full Advisory Committee for consideration. Standing subcommittee – Definition: Standing subcommittees are developed to address ongoing issues; have a standing membership; and generally meet on a regularly scheduled basis. Adopted 3/1999; Revised 9/2016 15 of 17 Contra Costa County IHSS Public Authority  Advisory Committee Membership: A minimum of three Advisory Committee members. Membership Appointment: Members are appointed by formal action of the Advisory Committee. The Chairperson of the Advisory Committee appoints the subcommittee Chairperson. Membership Terms: Members and Chairperson will serve one- year terms. There is no limit on the number of terms a member or Chairperson can serve. Absence Policy The same absence and removal policy approved for the full Advisory Committee would apply. Sub-committee and Advisory Committee absences would not be combined. Meeting Schedule: Standing committees will meet on a regularly scheduled basis. Committee members will determine the meeting schedule. Ad hoc subcommittees – Definition: Ad hoc subcommittees are developed to address specific, time-limited tasks; have an appointed membership; and disband after the specific task is accomplished. Membership: A minimum of three Advisory Committee members. Membership Appointment: Members are appointed by formal action of the Advisory Committee. The Chairperson of the Advisory Committee appoints the ad hoc subcommittee Chairperson. 16 of 17 Adopted 3/1999; Revised 9/2016 Contra Costa County IHSS Public Authority  Advisory Committee Membership Terms: Members and Chairperson will serve on an as needed basis, i.e., until the specific task is accomplished. There is no limit on the number of times a member or Chairperson can serve. Absence Policy: The same absence and removal policy approved for the full Advisory Committee would apply. Ad hoc and Advisory Committee absences would not be combined. Meeting Schedule: As needed. Contra Costa County IHSS Public Authority 500 Ellinwood Way. Suite 110 Pleasant Hill, CA 94523 RECOMMENDATION(S): CONTINUE the emergency action originally taken by the Board of Supervisors on November 16, 1999 regarding the issue of homelessness in Contra Costa County. FISCAL IMPACT: None. BACKGROUND: On November 16, 1999, the Board of Supervisors declared a local emergency, pursuant to the provisions of Government Code Section 8630 on homelessness in Contra Costa County. Government Code Section 8630 requires that, for a body that meets weekly, the need to continue the emergency declaration be reviewed at least every 14 days until the local emergency is terminated. In no event is the review to take place more than 21 days after the previous review. On November 15, 2016 the Board of Supervisors reviewed and approved the emergency declaration. With the continuing high number of homeless individuals and insufficient funding available to assist in sheltering all homeless individuals and families, it is appropriate for the Board to continue the declaration of a local emergency regarding homelessness. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Enid Mendoza, (925) 335-1039 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 95 To:Board of Supervisors From:David Twa, County Administrator Date:December 6, 2016 Contra Costa County Subject:Continue Extension of Emergency Declaration Regarding Homelessness BACKGROUND: (CONT'D) CONSEQUENCE OF NEGATIVE ACTION: CHILDREN'S IMPACT STATEMENT: RECOMMENDATION(S): Receive the 2015 Annual Report submitted by the Bethel Island Municipal Advisory Council (BIMAC), as recommended by Supervisor Mary Nejedly Piepho. FISCAL IMPACT: None. BACKGROUND: On December 16, 2008, the Board of Supervisors adopted policies for Municipal Advisory Councils requiring all MACs to submit annual reports. The reports (attached) include summaries of actions in 2015 and the 2016 objectives. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: LEA CASTLEBERRY (925) 252-4500 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 96 To:Board of Supervisors From:Mary N. Piepho, District III Supervisor Date:December 6, 2016 Contra Costa County Subject:BETHEL ISLAND MAC 2015 WORKPLAN ATTACHMENTS BIMAC 2015 Workplan 1 The Bethel Island Municipal Advisory Council serves as an advisory body to the Contra Costa County Board of Supervisors and the County Planning Agency. 2015 Annual Report to the Board of Supervisors Prepared by: Office of Supervisor Mary N. Piepho, Lea Castleberry Submitted by: Pam Allen, Chairperson Activities and Accomplishments The primary goals of the Bethel Island MAC in 2015 were to increase community awareness and participation at the monthly MAC meetings and to represent the community’s interests, concerns and voice for the Board of Supervisors. The MAC received informative presentations and provided thoughtful feedback on matters that impact Bethel Island and look forward to receiving additional updates in 2016: Feb: Joe Losado, Contra Costa County Code Enforcement Officer regarding 2015 Code Enforcement Priorities List Apr: Larry Tolson, Contra Costa County Enforcement Officer – Introduction as new Code Enforcement Officer for Bethel Island Sept: Jeanie Linden, East Contra Costa County Integrated Regional Water Management regarding Grant Funding for Water Related Projects Oct: Jason Chen, Contra Costa County Public Works Department regarding M-28 Update Nov: Greg Gillis, PG&E Community Pipeline Safety and Tree Removal Program Nov: Ed Horn, Suncal regarding Delta Coves Project Update The MAC’s activities and efforts have resulted in improvements and changes in 2015: A successful Community Clean-Up Day was held June 13, 2015. The Brentwood Disposal Company donated dumpster bins and staff time for the event. Through the Delta Conservancy tire cleanup program, the Bethel Island Municipal Advisory Council Pam Allen, Chair Supervisor Mary N. Piepho, District III Lea Castleberry, Deputy Chief of Staff 3361 Walnut Blvd., Ste 140 Brentwood, CA 94513 (925) 252-4500 Lea.Castleberry@bos.cccounty.us Bethel Island MAC 2015 Annual Report and 2016 Work Plan 2 community was allowed to drop tires free of charge. Electronic Waste Management hosted free electronic waste disposal. The community cleanup was free of charge to all Bethel Island residents. Worked on the proposal to rename the middle section of Stone Road to Windsweep. Worked on the PG&E Street Light Replacement Project. Worked on the PG&E Community Pipeline Safety and Tree Removal project. Continuing to work on the installation of the “Dry Hydrant” program. Continuing to work with East Contra Costa Fire Protection District promoting the sale and installation of reflective house number signs. Continuing to promote and expand the Heart Safe Communities program. Continuing to work with the Bethel Island Municipal Improvement District on services and funding for the Bethel Island community park. Continuing to work with the Sheriff’s Department, East Contra Costa Fire Protection District and California Highway Patrol on safety concerns within the Bethel Island community. The MAC receives monthly reports from the following agencies: California Highway Patrol – Officer Donnie Thomas Contra Costa Sheriff’s Department – Tony Fontenot, Crime Prevention Specialist East Contra Costa Fire Protection District – Fire Chief Hugh Henderson Office of Supervisor Mary N. Piepho – Lea Castleberry, Deputy Chief of Staff The MAC has become a place where Bethel Island residents can receive updated information on services provided by Contra Costa County and/or other local agencies such as public health, safety, welfare, public works and planning. 2015 Membership Chair, Pam Allen Vice Chair, Belinda Bittner Councilmember, Bob Cameron Councilmember, Ken Quick Councilmember, Jim Montgomery (April 2013 – April 2015) Councilmember, Rob Brunham (June 2015 – current) Attendance in 2015 January - Councilmember Quick Absent February - Councilmembers Quick and Montgomery Absent March - Councilmember Montgomery Absent April - Councilmember Cameron Absent Bethel Island MAC 2015 Annual Report and 2016 Work Plan 3 May - Meeting Cancelled June - Councilmember Cameron Absent July - Councilmembers Cameron and Quick Absent August - Councilmember Cameron Absent September - Councilmembers Cameron and Quick Absent October - Councilmember Cameron and Vice Chair Bittner Absent November - Vice Chair Bittner December – Councilmember Cameron Absent MAC Work Plan and Objectives for 2016 The Bethel Island MAC priorities for 2016 will continue to provide the community with the opportunity to communicate with the various County Departments. We will work to schedule pertinent and informative speak presentations at the monthly meetings. We will continue to work on items including: 1. Reflective Address Signs 2. Code Enforcement Priorities 3. Dry Hydrants 4. Outreach to the local mobile home parks 5. Heart Safe Communities Program 6. Transportation Outreach 7. Public Safety Outreach The Bethel Island MAC is scheduled to meet on the 2nd Tuesday of the month at 6:00p.m. at the Bethel Island Municipal Improvement District Office located at 3085 Stone Road. RECOMMENDATION(S): Receive the 2015 Annual Report submitted by the Knightsen Town Advisory Council, as recommended by Supervisor Mary Nejedly Piepho. FISCAL IMPACT: None. BACKGROUND: On December 16, 2008, the Board of Supervisors adopted policies for Municipal Advisory Council requiring all MACs to submit annual reports. The reports (attached) include summaries of actions for 2015 and the 2016 objectives. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lea Castleberry, (925) 252-4500 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 97 To:Board of Supervisors From:Mary N. Piepho, District III Supervisor Date:December 6, 2016 Contra Costa County Subject:KNIGHTSEN TAC 2015 WORKPLAN ATTACHMENTS KTAC 2015 Workplan 1 The Knightsen Town Advisory Council serves as an advisory body to the Contra Costa County Board of Supervisors and the County Planning Agency. 2015 Annual Report to the Board of Supervisors Prepared by: Office of Supervisor Mary N. Piepho, Lea Castleberry Submitted by: Linda Weekes, Chairperson Activities and Accomplishments The primary goals of the Knightsen TAC in 2015 were to increase community awareness and participation at the monthly TAC meetings and to represent the community’s interests, concerns and voice for the Board of Supervisors. The TAC received informative presentations and provided thoughtful feedback on matters that impact Knightsen and look forward to receiving additional updates in 2016: Feb: Chris Lau, Contra Costa County Public Works Department regarding local roads and culverts Feb: Joe Losado, Contra Costa County Code Enforcement Officer regarding 2015 Code Enforcement Priorities List Feb: Monish Sen, Contra Costa County Public Works Department regarding signage in Knightsen community Mar: Mark Whitlock, Emergency Coordinator for Bethel Island regarding Heart Safe Community Program Apr: Christopher Coelho, Bay Area Air Quality Management District regarding Burn Days Apr: Larry Tolson, Contra Costa County Enforcement Officer – Introduction as new Code Enforcement Officer for Knightsen June: Joe Losado, Contra Costa County Code Enforcement Off icer regarding 2015 Code Enforcement Priorities List Aug: Officer Donnie Thomas, California Highway Patrol and the Office of the Sheriff, Tony Fontenot, Crime Prevention Specialist regarding School Traffic Concerns Knightsen Town Advisory Council Linda Weekes, Chair Supervisor Mary N. Piepho, District III Lea Castleberry, Deputy Chief of Staff 3361 Walnut Blvd., Ste 140 Brentwood, CA 94513 (925) 252-4500 Lea.Castleberry@bos.cccounty.us Knightsen TAC 2015 Annual Report and 2016 Work Plan 2 Oct: Greg Gillis, PG&E Community Pipeline Safety and Tree Removal Program Oct: Jeanie Linden, East Contra Costa County Integrated Regional Water Management regarding Grant Funding for Water Related Projects The TAC’s activities and efforts have resulted in improvements and changes in 2015: A successful Community Clean-Up Day was held June 27, 2015. The Brentwood Disposal Company donated dumpster bins and staff time for the event. The community cleanup was free of charge to all Knightsen residents. Participated in the Third Annual Knightsen Holiday Parade Voted a Councilmember to attend monthly East Contra Costa Fire Protection District meetings Worked on Truck Traffic signs on Knightsen Ave. and Delta Road Worked on the PG&E Street Light Replacement Project Worked on the PG&E Community Pipeline Safety and Tree Removal project Continuing to work on railroad overlay asphalt project on Knightsen Ave. Continuing to monitor Heritage Tree on Delta Road and annual maintenance Continuing to promote and expand the Heart Safe Communities program Continuing to work on reflective address signs throughout community Continuing to work with the Sheriff’s Department, East Contra Costa Fire Protection District and California Highway Patrol on safety concerns within the Knightsen community. The TAC receives monthly reports from the following agencies: California Highway Patrol – Officer Donnie Thomas Contra Costa Sheriff’s Department – Tony Fontenot, Crime Prevention Specialist East Contra Costa Fire Protection District – Fire Chief Hugh Henderson Office of Supervisor Mary N. Piepho – Lea Castleberry, Deputy Chief of Staff The TAC has become a place where Knightsen residents can receive updated information on services provided by Contra Costa County and/or other local agencies such as public health, safety, welfare, public works and planning. 2015 Membership Chair, Linda Weekes Vice Chair, Al Simas Knightsen TAC 2015 Annual Report and 2016 Work Plan 3 Councilmember, Steve Ohmstede Councilmember, Greg Williams Councilmember, Juliana Wyman (August 2013 – January 2015) Councilmember, Kim Carone (June 2015 – current) Attendance in 2015 January – Meeting Cancelled February – Councilmember Williams Absent March – All Members Present April – All Members Present May – All Members Present June – All Members Present July – All Members Present August – All Members Present September – Meeting Cancelled October – All Members Present November – Meeting Cancelled December – Chair Weekes Absent TAC Work Plan and Objectives for 2016 The Knightsen TAC priorities for 2016 will continue to provide the community with the opportunity to communicate with the various County Departments. We will work to schedule pertinent and informative speak presentations at the monthly meetings. We will continue to work on items including: 1. Reflective Address Signs 2. Code Enforcement Priorities 3. Heart Safe Communities Program 4. Transportation Outreach 5. Public Safety Outreach 6. Neighborhood Watch Program The Knightsen TAC is scheduled to meet on the 4th Tuesday of the month at 7:00p.m. at the Knightsen Garden Club located at 3067 Knightsen Avenue. RECOMMENDATION(S): Receive the 2015 Annual Report submitted by the Byron Municipal Advisory Council (BMAC), as recommended by Supervisor Mary Nejedly Piepho. FISCAL IMPACT: None BACKGROUND: On December 16, 2008, the Board of Supervisors adopted policies for Municipal Advisory Councils requiring all MAC's to submit annual reports. The reports attached include summaries of actions in 2015 and the 2016 objectives. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Alicia Nuchols, 925-252-4500 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 98 To:Board of Supervisors From:Mary N. Piepho, District III Supervisor Date:December 6, 2016 Contra Costa County Subject:Byron MAC 2015 Workplan ATTACHMENTS BMAC 2015 Workplan 1 The Byron Municipal Advisory Council serves as an advisory body to the Contra Costa County Board of Supervisors and the County Planning Agency. 2015 Annual Report to the Board of Supervisors Prepared by: Office of Supervisor Mary N. Piepho, Alicia Nuchols Submitted by: Linnea Juarez, Chairperson Activities and Accomplishments The primary goal of the Byron MAC in 2015 was to continue to be the connection between the residents of Byron with the County. During the 2015 Byron MAC meetings the following presentations were made to the community. Public Works staff regarding traffic items Public Works staff regarding the Camino Diablo/Byron Highway intersection project. CCTA consultant regarding Tri-link 239 Airport Connector CHP regarding speed related traffic concerns Chief Henderson regarding ECCFPD failed benefit assessment and funding questions CC Regional Integrated Water Management regarding grant funding for water related projects During 2015 the Byron MAC activities and efforts included: A successful Community Clean-Up Day held on August 22, 2015. The Brentwood Disposal company brought multiple dumpsters and the event was free of charge to Byron residents. It was a wonderful opportunit y for a community clean up and the Byron MAC members and community volunteers, lead by Council member Lopez, assisted several elderly property owners clean up their residences. Byron MAC continued to send a representative to the monthly Code Enforcement meetings held at the Supervisor’s office to discuss and set code enforcement priorities for the Byron community. Significant Byron Municipal Advisory Council Linnea Juarez, Chair Supervisor Mary N. Piepho, District III Alicia Nuchols, Field Representative 3361 Walnut Blvd., Ste 140 Brentwood, CA 94513 (925) 252-4500 Alicia.Nuchols@bos.cccounty.us Byron MAC 2015 Annual Report and 2016 Work Plan 2 improvement in enforcement and compliance was completed throughout the year. The Byron MAC discussed concerns with the Public Works Department regarding the Camino Diablo and J-4 intersection and submitted comments regarding future projects in this area. Members in 2015 Chair Linnea Juarez Vice Chair Steve Larsen Council member Dennis Lopez Council member Mike Nisen Councilmember Father Ron Schmit Attendance in 2015 January- Councilmember Lopez absent February- All present March- Councilmember Schmit absent April- Chair Juarez and Councilmember Lopez May- Meeting cancelled June- Councilmember Schmit and Councilmember Nisen absent July- Chair Juarez and Councilmember Lopez absent August- Vice Chair Larsen absent September- Councilmember Nisen absent October- All present November- All present December- No meeting – combined with November meeting Work Plan and Objectives for 2016 The Byron MAC’s priorities for 2016 will continue to be to provide the Byron community with the opportunity to communicate with the various County Departments. We will work to schedule pertinent and informative speaker presentations at the monthly meetings. We will continue to work on: 1.) Heart Safe Community Designation 2.) Code Enforcement Priorities a) Illegal Dumping 3.) Continued efforts regarding speed and truck traffic on Camino Diablo/Holway 4.) Measure WW Funds 5.) Promote Community Identity 6.) Annual Clean-Up Day 7.) EOP(Emergency Operating Plan) Byron MAC 2015 Annual Report and 2016 Work Plan 3 a) Recognize potential hazards to the community b) Does Byron have a Disaster Relief Center? Has the Red Cross contracted with the school district for use of the school grounds? ST. Anne's? Other? c) Have we considered creating cashes of medical supplies and Red Cross shelter supplies? The Byron MAC is scheduled to meet on the 4th Tuesday of the month at 6:00p.m. at Byron Unified School District Board Room. RECOMMENDATION(S): Receive the 2015 Annual Report submitted by Diablo Municipal Advisory Council (DMAC), as recommended by Supervisor Mary Nejedly Piepho. FISCAL IMPACT: None BACKGROUND: On December 16, 2008, the Board of Supervisors adopted policies for Municipal Advisory Councils requiring all MAC's to submit annual reports. The reports attached include summaries of actions in 2015 and the 2016 objectives. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Alicia Nuchols, 925-252-4500 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C. 99 To:Board of Supervisors From:Mary N. Piepho, District III Supervisor Date:December 6, 2016 Contra Costa County Subject:Diablo MAC 2015 Workplan ATTACHMENTS 2015 Diablo MAC Workplan 1 The Diablo Municipal Advisory Council serves as an advisory body to the Contra Costa County Board of Supervisors and the County Planning Agency. 2015 Annual Report to the Board of Supervisors Prepared by: Office of Supervisor Mary N. Piepho, Alicia Nuchols Submitted by: Ray Brant, Chairperson Activities and Accomplishments The goal of the Diablo Municipal Advisory Council (MAC) in 2015 was to continue to work effectively and efficiently with the residents of Diablo and with Contra Costa County. During the 2015 calendar year, the Diablo MAC activities and efforts included: Received, reviewed and provided comments on the various land use - planning applications within the community of Diablo. Members in 2015 Ray Brant, Chair Vince Chow Jeff Mini Kathy Torru Don Hoffman Richard Breitwieser, Secretary and legal counsel Attendance at Meetings for 2015: January - Member Mini Absent February – Town Hall, Members present March – Chair Brant was absent April – All Members present May – All Members present June – All Members present Diablo Municipal Advisory Council Ray Brant, Chair Supervisor Mary N. Piepho, District III Alicia Nuchols, Field Representative 3361 Walnut Blvd., Ste 140 Brentwood, CA 94513 (925) 252-4500 Alicia.Nuchols@bos.cccounty.us Diablo MAC 2015 Annual Report and 2016 Work Plan 2 July - All Members present August- All Members present September – Meeting Cancelled October – All Members present November – All members present December - No Meeting (Combined Nov/Dec meetings) Work Plan and Objectives for 2016 The Diablo Municipal Advisory Council (MAC) priorities for 2016 will be to review land use planning matters that come before the Diablo community Diablo MAC Members will continue to work on: 1.) Land Use Planning matters before the Diablo community The Diablo MAC meets on the second Tuesday of each month at 7:30 P.M. at Diablo Country Club located at 1700 Club House Road, Diablo. RECOMMENDATION(S): ADOPT Resolution No. 2016/665 approving the issuance of Multifamily Housing Revenue Bonds (the "Bonds") by the California Public Finance Authority (the "CalPFA") in an amount not to exceed $28,000,000 for the benefit of Willowbrook Affordable Communities, L.P., or a partnership created by Islas Development LLC (the "Developer"), to provide financing for the costs of acquisition, rehabilitation, improvement and equipping of a multifamily housing development commonly known as Willowbrook Apartments, a 72-unit residential rental housing development located at 110 Bailey Road, Bay Point, California (the "Development"). Such adoption is solely for the purposes of satisfying the public approval requirements of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), the Code, and the California Government Code Section 6500 (and following). FISCAL IMPACT: No impact to the General Fund. The County will be reimbursed for any costs incurred in the process of conducting the TEFRA hearing. The CalPFA will issue tax-exempt bonds on behalf of the Developer. Repayment of the bonds is solely the responsibility of the Developer. BACKGROUND: Islas Development LLC (the "Developer") requested the County conduct a Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) hearing for the California Public Finance Authority (CalPFA) issuance of Multifamily Housing Revenue Bonds in an amount not to exceed $28,000,000 to be used to finance the acquisition, rehabilitation, improvement, and equipping of a multifamily housing development commonly known as Willowbrook APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kristen Lackey (925) 674-7888 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.100 To:Board of Supervisors From:John Kopchik, Director, Conservation & Development Department Date:December 6, 2016 Contra Costa County Subject:Multifamily HousingRevenue Bonds - Willowbrook, Bay Point BACKGROUND: (CONT'D) Apartments, a 72-unit residential rental housing development located at 110 Bailey Road, Bay Point, California (the "Development"). A TEFRA hearing must be held by an elected body of the governmental entity having jurisdiction over the area where the project is located in order for all or a portion of the Bonds to qualify as tax-exempt bonds for the financing of the Development. The County is a member of CalPFA and qualifies as an elected body of the governmental entity having jurisdiction over the area where the project is located. On July 18, 2016, the County's Community Development Bond Program Manager held a TEFRA hearing for the Development. On August 9, 2016, the Board of Supervisors approved Resolution 2016/474 acknowledging that a public hearing was held for the issuance of $12,000,000 for the Development.The Developer requested a second public hearing to increase the amount of the potential bond issuance from $12,000,000 to $17,000,000. Now the developer has requested that a third public hearing be held to increase the amount of the potential bond issuance from $17,000,000 to $28,000,000. The main purpose of the proposed Resolution 2016/665 is to acknowledge that a public hearing was held by the County's Community Development Bond Program Manager on November 21, 2016, where members of the community were given an opportunity to speak in favor of or against the use of $28,000,000 in tax-exempt bonds for the financing of the Development. No public comments were received. A notice of the hearing was published in the East Bay Times (proof of publication attached) on November 7, 2016. The County's only role in this transaction was to hold the TEFRA hearing (attached). Additional actions related to the bond issuance will be the responsibility of CalPFA. CONSEQUENCE OF NEGATIVE ACTION: Negative action would prevent CalPFA from providing tax-exempt financing for the Developer's Willowbrook Apartments project in Bay Point. CHILDREN'S IMPACT STATEMENT: The Willowbrook Apartments provide 72 units of affordable rental housing appropriate for families. This supports outcome #3: Families are Economically Self Sufficient. ATTACHMENTS Resolution No. 2016/665 Proof of Publication_11.7.16 TEFRA Hearing_11.21.16 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/665 RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF CONTRA COSTA APPROVING THE ISSUANCE BY THE CALIFORNIA PUBLIC FINANCE AUTHORITY OF MULTIFAMILY HOUSING REVENUE BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $28,000,000 FOR THE PURPOSE OF FINANCING OR REFINANCING THE ACQUISITION AND REHABILITATION OF WILLOWBROOK APARTMENTS AND CERTAIN OTHER MATTERS RELATING THERETO WHEREAS, Willowbrook Affordable Communities, L.P. or a partnership created by Islas Development, LLC (the “Developer”), consisting at least of the Developer or a related person to the Developer and one or more limited partners, has requested that the California Public Finance Authority (the “Authority”) participate in the issuance of one or more series of revenue bonds issued from time to time, including bonds issued to refund such revenue bonds in one or more series from time to time, in an aggregate principal amount not to exceed $28,000,000 (the “Bonds”) for the acquisition, rehabilitation, improvement and equipping of a 72-unit multifamily rental housing project located at 110 Bailey Road, Bay Point, California, generally known as Willowbrook Apartments (the “Project”) and operated by Logan Property Management, Inc.; and WHEREAS, pursuant to Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), the issuance of the Bonds by the Authority must be approved by the County of Contra Costa (the "County") because the Project is located within the territorial limits of the County; and WHEREAS, the Board of Supervisors of the County (the "Board of Supervisors”) is the elected legislative body of the County and is the applicable elected representative under Section 147(f) of the Code; and WHEREAS, the Authority has requested that the Board of Supervisors approve the issuance of the Bonds by the Authority in order to satisfy the public approval requirement of Section 147(f) of the Code and the requirements of Section 12 of the Joint Exercise of Powers Agreement Relating to the California Public Finance Authority, dated as of May 12, 2015 (the “Agreement”), among certain local agencies, including the County; and WHEREAS, pursuant to Section 147(f) of the Code, the Community Development Program Manager of the County has, following notice duly given, held a public hearing regarding the issuance of the Bonds, and a summary of any oral or written testimony received at the public hearing has been presented to the Board of Supervisors for their consideration; and WHEREAS, the Board now desires to approve the issuance of the Bonds by the Authority; and WHEREAS, the Board of Supervisors understands that its actions in holding this public hearing and in approving this Resolution do not obligate the County in any manner for payment of the principal, interest, fees or any other costs associated with the issuance of the Bonds, and said Board of Supervisors expressly conditions its approval of this Resolution on that understanding. NOW, THEREFORE, BE IT RESOLVED, by the Board of Supervisors of the County of Contra Costa as follows: Section 1. The Board of Supervisors hereby approves the issuance of the Bonds by the Authority for the purposes of financing the Project. It is the purpose and intent of the Board of Supervisors that this Resolution constitute approval of the issuance of the Bonds by the Authority, for the purposes of (a) Section 147(f) of the Code by the applicable elected representative of the governmental unit having jurisdiction over the area in which the Project is located, in accordance with said Section 147(f) and (b) Section 12 of the Agreement. Section 2. The officers of the Board of Supervisors are hereby authorized and directed, jointly and severally, to do any and all things and execute and deliver any and all documents, certificates and other instruments which they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this Resolution and the financing transaction approved hereby. Any actions heretofore taken by such officers are hereby ratified and approved. Section 3. The Board of Supervisors expressly conditions its approval of this Resolution on its understanding that the County shall have no obligation whatsoever to pay any principal, interest, fees or any other costs associated with the Authority's issuance of the Loan for the financing of the Project. Section 4. This Resolution shall take effect from and after its passage and approval. Contact: Kristen Lackey (925) 674-7888 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: RECOMMENDATION(S): (1) APPROVE the Heating, Ventilation, and Air Conditioning (HVAC) Equipment Replacement Project at 2530 Arnold Drive, Martinez, and (2) DETERMINE that the Project is a California Environmental Quality Act (CEQA), Class 1(d) Categorical Exemption, pursuant to Section 15301(d) of the CEQA Guidelines, and (3) DIRECT the Director of the Conservation and Development Department to file a Notice of Exemption with the County Clerk, and (4) AUTHORIZE the Public Works Director to arrange for payment of a $25 fee to the Department of Conservation and Development Department for processing and a $50 fee to the County Clerk for filing the Notice of Exemption. FISCAL IMPACT: 100% General Fund (Facilities Life-Cycle Investment Program Fund). The project is estimated to total $1,272,860. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.101 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:HVAC Equipment Replacement at 2530 Arnold Drive, Martinez and Related CEQA Actions (WH124B) BACKGROUND: The project consists of installing four new rooftop air conditioning units, updating and upgrading the electrical panels and shut-off devices that serve the replacement air conditioning units. No changes to the structure of the building or other support equipment are required. The work will be performed utilizing cranes that will rig and hoist the new units and remove the existing older units. On November 10, 2015, the Board of Supervisors awarded a job order contract (JOC) for repair, remodeling, and other repetitive work to be performed pursuant to the Construction Task Catalog to each of Sea Pac Engineering, Inc., John F. Otto, Inc., and Mark Scott Construction, each in the amount of $2,000,000. On September 20, 2016, the Board approved a change order to increase the contract amount to $4,500,000 for both John F. Otto, Inc., and Mark Scott Construction. This project is expected to be performed by one of the three JOC contractors. A task order catalogue has been prepared for the JOC Contractor to perform the HVAC system replacement and associated upgrades. In the event that it is not performed by a JOC contractor, the Public Works Department will go to the Board for approval of plans and specifications and authorization to advertise and solicit bids. CONSEQUENCE OF NEGATIVE ACTION: If the project is not approved, the HVAC units will continue to deteriorate ultimately resulting in higher maintenance costs and failure. ATTACHMENTS CEQA Documents RECOMMENDATION(S): (1) APPROVE the design and bid documents, including the plans and specifications, for the Remodeling of the 1st, 3rd, and 4th Floors at 900 Ward Street, Martinez, for the District Attorney’s Office project. (2) DETERMINE that the Project is a California Environmental Quality Act (CEQA), Class 1(a) Categorical Exemption, pursuant to Article 19, Section 15301(a) of the CEQA Guidelines, and DIRECT the Director of the Conservation and Development Department to file a Notice of Exemption with the County Clerk, and AUTHORIZE the Public Works Director to arrange for payment of a $25 fee to the Department of Conservation and Development Department for processing and a $50 fee to the County Clerk for filing the Notice of Exemption. (3) AUTHORIZE the Public Works Director, or designee, to solicit bids to be received on or about January 12, 2017, and issue bid addenda, as needed, for clarification of the bid documents, provided the involved changes do not significantly increase the construction cost estimate. (4) DIRECT the Clerk of the Board to publish, at least 14 calendar days before the bid opening date, the Notice to Contractors in accordance with Public Contract Code Section 22037, inviting bids for this project. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Ramesh Kanzaria, (925) 313-2000 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.102 To:Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:December 6, 2016 Contra Costa County Subject:APPROVE and AUTHORIZE Advertisement for the Remodeling Project at 900 Ward Street, Martinez, for the District Attorney’s Office (WH128B) RECOMMENDATION(S): (CONT'D) (5) DIRECT the Public Works Director, or designee, to send notices by email or fax and by U.S. Mail to the construction trade journals specified in Public Contract Code Section 22036 at least 15 calendar days before the bid opening. FISCAL IMPACT: 100% General Fund. BACKGROUND: The purpose of the project is to renovate the District Attorney’s Office, which is in need of additional office space. The 3rd floor law library will be converted into office space for law clerks and the 4th floor patio will be converted into cubicle offices. Currently, there is one shower and locker room for both sexes. A portion of the 1st floor copy room will be converted to provide an additional shower and locker room. Plans and specifications for the project have been prepared for the Public Works Department by Kava Massih Architects. The construction cost estimate is $710,000 and the general prevailing wage rates are on file with the Clerk of the Board of Supervisors and will be the minimum rates paid on this project. CONSEQUENCE OF NEGATIVE ACTION: If the project is not approved, the facility will be unable to meet the needs of existing staff. ATTACHMENTS CEQA Documents RECOMMENDATION(S): AUTHORIZE the Auditor-Controller to make a deduction from special tax proceeds at the rate of $0.09 per special assessment and credit that amount to the Assessor's account 1600-9607, pursuant to Board Resolution No. 84/332. FISCAL IMPACT: This action would allow the County to recover costs incurred in collecting special taxes on behalf of local agencies. BACKGROUND: The Assessor has developed and attempted to maintain parcel use codes for the internal use of this office and is not required to maintain such codes for other purposes. Local agencies imposing special taxes have made use of the parcel use codes in collecting special taxes. Government Code Sections 50077 (b) and 53978 (d) authorize the County to deduct from special tax proceeds its reasonable costs incurred in collecting special taxes on behalf of local agencies. CONSEQUENCE OF NEGATIVE ACTION: Denial of this action would prevent the County from recovering its costs incurred in collecting special taxes on behalf of local agencies. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sara Holman, 925-313-7503 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Sara Holman, Laura Strobel, Dorothy Lim C.103 To:Board of Supervisors From:Gus Kramer, Assessor Date:December 6, 2016 Contra Costa County Subject:Recovery of Costs for Maintaining Use Codes for Special Taxes ATTACHMENTS Use Code Resolution No. 84-332 RECOMMENDATION(S): ADOPT Resolution No. 2016/653 delegating authority to the Executive Director of the California Electronic Recording Transaction Network Authority to execute, on behalf of the County, certain Memoranda of Understanding (MOUs) with electronic recording submitters, and APPROVE and AUTHORIZE the County Clerk-Recorder to execute a certificate of such delegation, attached, to the CERTNA Executive Director. FISCAL IMPACT: No fiscal impact. BACKGROUND: In 2012, the Board of Supervisors authorized the County Clerk-Recorder to execute a Memorandum of Understanding (MOU) with the California Electronic Recording Network Authority (CERTNA) to participate in the CERTNA Electronic Recording Delivery System (ERDS). The ERDS modernized the County's recording function by allowing it to accept specific digitized records for recording from authorized submitters, such as title companies and lenders. Historically, the County Clerk-Recorder has approved MOUs with individual submitters to utilize ERDS. The County Clerk-Recorder has executed and managed hundreds of MOUs with submitters since implementation of the system. CERTNA and its member counties recognize the need to achieve efficiencies by streamlining operations to attract more submitters; thus, increasing utilization of electronic recording. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Barbara Dunmore 925-335-7919 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.104 To:Board of Supervisors From:Joseph E. Canciamilla, Clerk-Recorder Date:December 6, 2016 Contra Costa County Subject:Delegating Certain MOU Execution Authority to CERTNA Executive Director BACKGROUND: (CONT'D) To streamline the process, member counties, in conjunction with CERTNA, are proposing that CERTNA enter into MOUs with submitters on behalf of counties by delegating such authority to the CERTNA Executive Director. The "unified" MOU will reduce the time each county spends approving and managing individual MOUs and alleviate a paper-intensive process, while each county retains the final authority to accept, reject, or discontinue any submitter. As of November 1, 2016, 40 percent of CERTNA counties had adopted the unified MOU. In addition to operational efficiencies, the updated MOU between submitters and counties provides additional protections related to the County's performance under the MOU and it requires the submitter to defend and indemnify the County and CERTNA against copyright and patent infringement, and other intellectual property-related claims. CONSEQUENCE OF NEGATIVE ACTION: The County Clerk-Recorder will continue executing MOUs with individual submitters and will not realize the efficiencies afforded by the unified MOU. ATTACHMENTS Resolution No. 2016/653 CERTNA Res. 2016-001 Certificate of Delegation Unified MOU THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/653 In the matter of Delegating Certain Memorandum of Understanding Execution Authority to the Executive Director of the California Electronic Recording Transaction Network: WHEREAS, the Board of Directors of the California Electronic Recording Transaction Network Authority (CERTNA) has approved a form of Memorandum of Understanding for the purpose of confirming and establishing the agreement and understanding of each qualified Submitter (as defined in the Electronic Recording Delivery Act of 2004, California Government Code section 27390 et seq., and the regulations promulgated thereunder, set forth at California Code of Regulations, Title 11, Division 1, Chapter 18, Articles 1 through 9), of the procedures required to record documents electronically in CERTNA member/client continues; and WHEREAS on January 14, 2016, the Board of Directors of the CERTNA adopted its Resolution No. 2016-001, delegating certain MOU execution authority to the Executive Director of CERTNA; and WHEREAS, the Board of Supervisors (the "Board") of the Contra Costa County (the "County") recognizes the need for efficient processing of documents on behalf of member and client counties; and WHEREAS, the Board further recognizes the need for efficient and streamlined processes within CERTNA; NOW, THEREFORE, the Board of Supervisors of Contra Costa County does hereby resolve as follows: Section 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference. Section 2. Delegation. The Board hereby delegates to the Executive Director of CERTNA the authority to execute certain Memorandum of Understanding, as defined in CERTNA Resolution No. 2016-001, on behalf of the County. Section 3. Retention of Final Acceptance Authority. Subject to the requirements of the Act, and consistent with CERTNA Resolution No. 2016-001, the County shall retain final authority to accept or reject any submitter proposed to become party to the MOU. Section 4. Certification. The Clerk of the Board of Supervisors shall certify to the adoption of this Resolution. Contact: Barbara Dunmore 925-335-7919 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: CONTRA COSTA COUNTY CERTIFICATE OF DELEGATION TO CERTNA EXECUTIVE DIRECTOR WHEREAS, on January 14, 2016, the Board of Directors of the California Electronic Recording Transaction Network Authority (CERTNA) adopted its Resolution No. 2016-001, delegating certain memorandum of understanding execution authority to the Executive Director of CERTNA; and WHEREAS, the Contra Costa County (“County”) Clerk-Recorder (“Recorder”) recognizes the need for efficient and streamlined processes within CERTNA; NOW, THEREFORE, the undersigned does hereby certify and authorize the following: Section 1. The undersigned warrants and represents that at the date hereof, he or she has full power and lawful authority to execute and deliver this certificate of delegation to CERTNA. Section 2. The undersigned does hereby delegate to the Executive Director of CERTNA the authority to execute certain Memoranda of Understanding, as defined in CERTNA Resolution No. 2016- 001, on behalf of Contra Costa County. ______________________________ Date: ____________________________ Joseph Canciamilla Contra Costa County Clerk-Recorder-Registrar RECOMMENDATION(S): In the matter of making a loan of $1,475,000 in HOME Investment Partnership Act (HOME) and $625,000 in Community Development Block Grant funds to El Cerrito Senior L.P., a California limited partnership, for the development of the Hana Gardens Apartment project in El Cerrito: 1. FIND, as the responsible agency, that on the basis of the whole record before the County (including the Environmental Impact Report [EIR] prepared by the City of El Cerrito as the lead agency) that there is no substantial evidence that the project will have a significant effect on the environment, and that the EIR prepared for this project is adequate and acceptable to comply with the California Environmental Quality Act; and 2. APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute legal documents to effect the loan; and 3. DIRECT the Director of Conservation and Development, or designee, to file a Notice of Determination for the Hana Gardens Apartments with the County Clerk; and 4. DIRECT the Director of Conservation and Development, or designee, to arrange for payment of the $50 handling fee to the County Clerk for filing such Notice of Determination. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kara Douglas 674-7880 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 , County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.105 To:Board of Supervisors From:John Kopchik, Director, Conservation & Development Department Date:December 6, 2016 Contra Costa County Subject:APPROVAL OF HOME AND CDBG LEGAL DOCUMENTS FOR THE HANA GARDENS APARTMENTS IN EL CERRITO FISCAL IMPACT: No General Fund impact. HOME Investment Partnerships Act and Community Development Block Grant funds are provided to the County on a formula allocation basis through the U.S. Department of Housing and Urban Development (HUD). HOME CFDA# 14.256. CDBG CFDA# 14.218. BACKGROUND: On May 10, 2016, the Board of Supervisors allocated $100,000 of HOME funds and confirmed previous allocations of $1,375,000 in HOME and $625,000 in CDBG funds to Eden Housing Development (Eden) for the Hana Gardens Apartment development. Eden has formed a limited partnership, El Cerrito Senior L.P., to develop and own this project. The purpose of the Hana Gardens Apartment development is to increase the supply of multi-family rental housing affordable to and occupied by lower income senior households in West County through the construction of 63 units of affordable housing at 10860 San Pablo Avenue in El Cerrito. Seventeen of the units will be designated as County-assisted and will be affordable and available to households earning up to 30 percent of the area median income (AMI). One unit will be reserved for an on-site manager. The remaining units will be affordable and available to households earning up to 60 percent of AMI. Additional financing for the development includes City of El Cerrito ($308,015 and land donation from the former redevelopment agency), tax exempt bonds ($21 million construction period only), four percent low income housing tax credits ($13 million), State Affordable Housing and Sustainable Communities ($5.3 million), State Infrastructure Grant funds ($1.4 million), and $1.9 million in deferred developer fee and general partner equity. The County is the issuer for tax exempt bonds. HOME and CDBG funds will be provided in the form of a 20-year, residual receipt loan with a three percent interest rate. There may be some payments if the project has surplus cash flow. The County will have an additional regulatory agreement to ensure that the County-assisted units remain affordable following the expiration of the HOME and CDBG affordability terms. The total term of affordability for the County-assisted units is 55 years. Affordability and use restrictions are incorporated into the County loan documents. The loan documents are attached in their substantially final form and will be executed in a form approved by County Counsel. Through this action, the DCD Director is authorized to execute subordination agreements and estoppels that are consistent with the terms in the Loan Agreement. National Environmental Policy Act (NEPA): HOME and CDBG projects are subject to NEPA and 24 CFR Part 58 review. The NEPA review for this project is complete and required mitigation actions are included in the loan agreement. The City of El Cerrito, as the lead agency, completed the CEQA review and posted Notices of Determination for the project on December 20, 2013, January 14, 2014, and April 25, 2014. Due to the high construction costs and limited revenue from the restricted rents, the total amount of the financing provided to the project will likely exceed the value of the completed project. Even though the proposed equity investment from low income housing tax credits is substantial compared to the amount of long term debt, the partnership agreement will have numerous safe guards of the investor's equity. These safe guards essentially subordinate the County’s debt to the investor’s equity. Therefore, the County funds may not be fully secured through the value of the property. CONSEQUENCE OF NEGATIVE ACTION: Without the approval and execution of the HOME and CDBG legal documents, the project will not be constructed. El Cerrito Senior L.P. must close the bond transaction by January 17, 2017, or forgo the $100,000 performance deposit with the California Debt Limit Allocation Committee. CHILDREN'S IMPACT STATEMENT: ATTACHMENTS Loan Agreement HOME_CDBG Regulatory Agreement County Regulatory Agreement Promissory Note Deed of Trust Intercreditor Agreement 1 863\101\1955463.5 DEVELOPMENT LOAN AGREEMENT Hana Gardens Apartments (HOME and CDBG Funds) This Development Loan Agreement (the "Agreement") is dated December ___, 2016, and is between the County of Contra Costa, a political subdivision of the State of California (the "County"), and El Cerrito Senior, L.P., a California limited partnership ("Borrower"). RECITALS A. Defined terms used but not defined in these recitals are as defined in Article 1 of this Agreement. B. The County has received Home Investment Partnerships Act funds from the United States Department of Housing and Urban Development ("HUD") pursuant to the Cranston-Gonzales National Housing Act of 1990 ("HOME Funds"). The HOME Funds must be used by the County in accordance with 24 C.F.R. Part 92 (the "HOME Regulations"). C. The County has received funds from HUD under Title I of the Housing and Community Development Act of 1974, as amended ("CDBG Funds"). The CDBG Funds must be used by the County in accordance with 24 C.F.R. Part 570. D. Pursuant to a Disposition, Development, and Loan Agreement dated April 23, 2014 between Eden Housing, Inc., a California nonprofit public benefit corporation ("Eden") and the City of El Cerrito as amended, which was assigned to Borrower pursuant to an Assignment Agreement dated December ___,2016, Borrower intends to purchase that certain real property located at 10860 San Pablo Avenue, in the City of El Cerrito, County of Contra Costa, State of California, as more particularly described in Exhibit A (the "Property"). Borrower intends to construct sixty-three (63) senior housing units on the Property for rental to extremely low, very low and low income households, including one (1) manager's unit (the "Development"). The Development, as well as all landscaping, roads and parking spaces on the Property and any additional improvements on the Property, are the "Improvements". E. The County and Borrower are parties to a CDBG Project Agreement 16-47-HSG dated _____________, 2016 (the "CDBG Project Agreement"), pursuant to which the County agreed to lend CDBG Funds to Borrower to assist in the acquisition of the Property. F. In furtherance of the CDBG Project Agreement Borrower desires to borrow from the County Six Hundred Twenty-Five Thousand Dollars ($625,000) of CDBG Funds (the "CDBG Loan") and also desires to borrow from the County One Million Four Hundred Seventy- Five Thousand Dollars ($1,475,000) of HOME Funds (the "HOME Loan"), for a total loan amount of Two Million One Hundred Thousand Dollars ($2,100,000) (the "Loan"). G. The HOME Funds being used for the HOME Loan are funds which are set aside for entities that are designated as a Community Housing Development Organization ("CHDO") as defined in 24 C.F.R. 92.2. 2 863\101\1955463.5 H. The Loan is evidenced by this Agreement, the Note, the Regulatory Agreements, and the Intercreditor Agreement, and is secured by the Deed of Trust. I. The Loan is being made to finance acquisition and construction costs of the Development. Construction of the Development is intended to maintain the supply of affordable rental housing in Contra Costa County. Due to the assistance provided Borrower through the Loan, the County is designating seventeen (17) units as HOME- and CDBG-assisted units (the "HOME/CDBG-Assisted Units"). J. The City approved the Development on December 18, 2013 and prepared an Environmental Impact Report pursuant to the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) ("CEQA"). K. In accordance with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) ("NEPA"), the County has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement. The parties therefore agree as follows: AGREEMENT ARTICLE 1 DEFINITIONS AND EXHIBITS Section 1.1 Definitions. The following terms have the following meanings: (a) "Adjusted AHSC Loan" means, to the extent less than the full amount of the AHSC HCD Loan is funded, an amount equal to the actual principal amount loaned to Borrower by HCD pursuant to the documents between Borrower and HCD evidencing the AHSC HCD Loan. If the full amount of the AHSC HCD Loan is funded, the Adjusted AHSC Loan is equal to the AHSC HCD Loan. (b) "Adjusted City Loan" means, to the extent less than the full amount of the City Loan is funded, an amount equal to the actual principal amount loaned to Borrower by the City pursuant to the documents between Borrower and the City evidencing the City Loan minus any Special City Loan Payment. If the full amount of the City Loan is funded and no portion is repaid as a Special City Loan Payment, the Adjusted City Loan is equal to the City Loan. (c) "Adjusted City Funding" means the sum of the Adjusted City Loan and the City Property Value. (d) "Adjusted County Loan" means, to the extent less than the full amount of the County Loan is funded, an amount equal to the actual principal amount loaned 3 863\101\1955463.5 to Borrower by the County pursuant to this Agreement minus any Special County Loan Payment. If the full amount of the County Loan is funded and no portion is repaid as a Special County Loan Payment, the Adjusted County Loan is equal to the County Loan. (e) "Agreement" means this Development Loan Agreement. (f) "AHSC" has the meaning set forth in Section 1.1(k)(iii). (g) "AHSC HCD Loan" has the meaning set forth in Section 1.1(k)(iii). (h) "Annual Operating Expenses" means for each calendar year, the following costs reasonably and actually incurred for operation and maintenance of the Development: (i) property taxes and assessments imposed on the Development; (ii) debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Development) on the CCRC Loan; (iii) on-site service provider fees for tenant social services, provided the County has approved, in writing, the plan and budget for such services before such services begin; (iv) fees paid to the Issuer with respect to the Bonds; (v) payment to HCD of a portion of the accrued interest on the AHSC HCD Loan pursuant to California Code of Regulations, Title 25, Section 7308; (vi) property management fees and reimbursements, on–site property management office expenses, and salaries of property management and maintenance personnel, not to exceed amounts that are standard in the industry and which are pursuant to a management contract approved by the County; (vii) the Partnership/Asset Fee; (viii) fees for accounting, audit, and legal services incurred by Borrower's general partner in the asset management of the Development, not to exceed amounts that are standard in the industry, to the extent such fees are not included in the Partnership/Asset Fee; (ix) premiums for insurance required for the Improvements to satisfy the requirements of any lender of Approved Financing; (x) utility services not paid for directly by tenants, including water, sewer, and trash collection; (xi) maintenance and repair expenses and services; 4 863\101\1955463.5 (xii) any annual license or certificate of occupancy fees required for operation of the Development; (xiii) security services; (xiv) advertising and marketing; (xv) cash deposited into the Replacement Reserve Account in the amount set forth in Section 4.2(a); (xvi) cash deposited into the Operating Reserve Account to maintain the amount set forth in Section 4.2(b) (excluding amounts deposited to initially capitalize the account); (xvii) payment of any previously unpaid portion of Developer Fee (without interest), not to exceed the amount set forth in Section 3.17; (xviii) extraordinary operating costs specifically approved in writing by the County; (xix) payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves, and other ordinary and reasonable operating expenses approved in writing by the County and not listed above. Annual Operating Expenses do not include the following: depreciation, amortization, depletion or other non-cash expenses, initial deposits to capitalize a reserve account, any amount expended from a reserve account, and any capital cost associated with the Development. (i) "Annual Payment" has the meaning in Section 2.8(a). (j) "Approved Development Budget" means the proforma development budget, including sources and uses of funds, as approved by the County, and attached hereto and incorporated herein as Exhibit B. (k) "Approved Financing" means all of the following loans, grants and equity obtained by Borrower and approved by the County for the purpose of financing the acquisition of the Property and construction of the Development: (i) loan from the City in the approximate amount of Three Hundred Thousand Dollars ($300,000) (the "City Loan"); (ii) multi-family housing revenue tax exempt bonds in the approximate amount of Twenty-One Million Dollars ($21,000,000) (the "Bonds") issued by the County of Contra Costa (the "Issuer") that are purchased by the Bank and the sale proceeds of which are 5 863\101\1955463.5 loaned to Borrower (the "Bank Construction Loan") which will convert to a permanent loan from CCRC in the approximate amount of Six Million Four Hundred Six Thousand Eight Hundred Dollars ($6,406,800) (the "CCRC Loan"); (iii) permanent loan of Affordable Housing Sustainable Communities ("AHSC") funds from the California Department of Housing and Community Development ("HCD") in the approximate amount of Five Million Two Hundred Seventy-One Thousand Six Hundred Ninety-Six Dollars ($5,271,696) (the "AHSC HCD Loan"); (iv) IIG and Transit Pass Loan from EDI, composed of Infill Infrastructure Grant Program funds received from HCD in the approximate amount of One Million Three Hundred Ninety-Nine Thousand Five Hundred Forty-Seven Dollars ($1,399,547), and a Twenty-Two Thousand Six Hundred- Eighty Dollar ($22,680.00) portion of the AHSC Transit Related Improvements Grant Program funds from HCD to the City and granted by the City to EDI, for a total loan amount of One Million Four Hundred Twenty-Two Thousand Two Hundred Seventy-Seven Dollars ($1,422,277) (the "EDI Loan"); (v) the Low Income Housing Tax Credit investor equity funds in the approximate amount of Twelve Million Eight Hundred Seventy-Three Thousand One Hundred Eighty-Five Dollars ($12,873,185) (the "Tax Credit Investor Equity") provided by the Investor Limited Partner; and (vi) the capital contribution from Borrower's general partner in the approximate amount of One Hundred Dollars ($100) (the "GP Capital Contribution"). (l) "Available Net Proceeds" means the result obtained by multiplying the Net Proceeds of Permanent Financing by 0.75. (m) "Bank" means Wells Fargo Bank, N.A. (n) "Bank Construction Loan" has the meaning set forth in Section 1.1(k)(ii). (o) "Bid Package" means the package of documents Borrower's general contractor is required to distribute to potential bidders as part of the process of selecting subcontractors for the Development. The Bid Package is to include the following: (i) an invitation to bid; (ii) copy of the proposed construction contract; (iii) a form of bid guarantee that is reasonably acceptable to the County that guarantees, at a minimum, an amount equal to five percent (5%) of the bid price; and (iv) all Construction Plans. (p) "Bonds" has the meaning set forth in Section 1.1(k)(ii). (q) "Borrower" has the meaning set forth in the first paragraph of this Agreement. (r) "Borrower's Shared Portion of Residual Receipts" means twenty- five percent (25%) of Residual Receipts. 6 863\101\1955463.5 (s) "CCRC" means California Community Reinvestment Corporation. (t) "CCRC Loan" has the meaning set forth in Section 1.1(k)(ii). (u) "CDBG Funds" has the meaning set forth in Paragraph C of the Recitals. (v) "CDBG Loan" has the meaning set forth in Paragraph F of the Recitals. (w) "CDBG Project Agreement" has the meaning set forth in Paragraph E of the Recitals. (x) "CEQA" has the meaning set forth in Paragraph J of the Recitals. (y) "CHDO" has the meaning set forth in Paragraph G of the Recitals. (z) "City" means the City of El Cerrito, California, a municipal corporation. (aa) "City Loan" has the meaning set forth in Section 1.1(k)(i). (bb) "City Property Value" means the value of the Property at the time of acquisition of the Property by the City which is Three Million Nine Hundred Thousand Dollars ($3,900,000). (cc) "Commencement of Construction" has the meaning set forth in Section 3.5. (dd) "Completion Date" means the date a final certificate of occupancy, or equivalent document is issued by the City to certify that the Development may be legally occupied. (ee) "Construction Plans" means all construction documentation upon which Borrower and Borrower's general contractor rely in constructing all the Improvements on the Property (including the units in the Development, landscaping, parking, and common areas) and includes, but is not limited to, final architectural drawings, landscaping plans and specifications, final elevations, building plans and specifications (also known as "working drawings"). (ff) "County" has the meaning set forth in the first paragraph of this Agreement. (gg) "County Additional Prorata Share" means the result obtained by dividing the Adjusted County Loan by the sum of the Adjusted County Loan and the Adjusted City Funding. (hh) "County Loan Prorata Percentage" means (i) prior to the date the City Adjusted Loan is paid in full, the result, expressed as a percentage, obtained by dividing 7 863\101\1955463.5 the Adjusted County Loan by the sum of the Adjusted County Loan, the Adjusted City Loan, and the Adjusted AHSC HCD Loan, and (ii) after the date the City Adjusted Loan is paid in full, the result, expressed as a percentage, obtained by dividing the Adjusted County Loan by the sum of the Adjusted County Loan and the Adjusted AHSC HCD Loan. (ii) "County Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants of even date herewith, between the County and Borrower evidencing County requirements applicable to the Loan, to be recorded against the Property. (jj) "Deed of Trust" means the Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing of even date herewith among Borrower, as Trustor, Old Republic Title Company, as trustee, and the County, as beneficiary, that will encumber the Property to secure repayment of the Loan and performance of the covenants of the Loan Documents. (kk) "Default Rate" means the lesser of the maximum rate permitted by law and ten percent (10%) per annum. (ll) "Developer Fee" has the meaning set forth in Section 3.17. (mm) "Development" has the meaning set forth in Paragraph F of the Recitals. (nn) "Eden" has the meaning set forth in Paragraph D of the Recitals. (oo) "EDI" means Eden Development, Inc., a California nonprofit public benefit corporation. (pp) "EDI Loan" has the meaning set forth in Section 1.1(k)(iv). (qq) "Eligible Household" means a household qualified to occupy a HOME-Assisted Unit pursuant to Section 2.1(b) of the HOME/CDBG Regulatory Agreement. (rr) "Event of Default" has the meaning set forth in Section 6.1. (ss) "Fifteen Year Compliance Period" means the fifteen (15) year compliance period as described in Section 42(i)(1) of the Internal Revenue Code of 1986, as amended. (tt) "Final Cost Certification" has the meaning set forth in Section 4.3. (uu) "Final Development Cost" means the total of the cost of acquisition and construction of the Development as shown on the Final Cost Certification. (vv) "GP Capital Contribution" has the meaning set forth in Section 1.1(k)(vi). 8 863\101\1955463.5 (ww) "Gross Revenue" means for each calendar year, all revenue, income, receipts, and other consideration actually received from the operation and leasing of the Development. Gross Revenue includes, but is not limited to: (i) all rents, fees and charges paid by tenants; (ii) Section 8 payments and other rental or operating subsidy payments received for the dwelling units; (iii) deposits forfeited by tenants; (iv) all cancellation fees; (v) price index adjustments and any other rental adjustments to leases or rental agreements; (vi) net proceeds from vending and laundry room machines; (vii) the proceeds of business interruption or similar insurance not paid to senior lenders; (viii) the proceeds of casualty insurance not used to rebuild the Development and not paid to senior lenders; and (ix) condemnation awards for a taking of part or all of the Development for a temporary period. Gross Revenue does not include tenants' security deposits, loan proceeds, unexpended amounts (including interest) in any reserve account, required deposits to reserve accounts, capital contributions or similar advances. (xx) "Hazardous Materials" means: (i) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos- containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical, and (ii) any waste, substance or material defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "toxic materials", "toxic waste", "toxic substances," or words of similar import under any Hazardous Materials Law. (yy) "Hazardous Materials Claims" means with respect to the Property (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Borrower or the Property pursuant to any Hazardous Materials Law; and (ii) all claims made or threatened by any third party against Borrower or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials. (zz) "Hazardous Materials Law" means any federal, state or local laws, 9 863\101\1955463.5 ordinances, or regulations relating to any Hazardous Materials, health, industrial hygiene, environmental conditions, or the regulation or protection of the environment, and all amendments thereto as of this date and to be added in the future and any successor statute or rule or regulation promulgated thereto. (aaa) "HCD" has the meaning set forth in Section 1.1(k)(iii). (bbb) "HOME" means the HOME Investment Partnership Act Program pursuant to the Cranston-Gonzales National Affordable Housing Act of 1990 (42 U.S.C. 12705 et seq.), as amended. (ccc) "HOME/CDBG-Assisted Units" has the meaning set forth in Paragraph I of the Recitals. (ddd) "HOME/CDBG Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants of even date herewith, between the County and Borrower evidencing HUD requirements applicable to the Loan, to be recorded against the Property. (eee) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals. (fff) "HOME Loan" has the meaning set forth in Paragraph F of the Recitals. (ggg) "HOME Regulations" has the meaning set forth in Paragraph B of the Recitals. (hhh) "Housing Authority" means the Housing Authority of Contra Costa County. (iii)"HUD" has the meaning set forth in Paragraph B of the Recitals. (jjj) "Improvements" has the meaning set forth in Paragraph D of the Recitals. (kkk) "Intercreditor Agreement" means that certain intercreditor agreement of even date herewith entered into by and among the City, the County, and Borrower related to the Loan and the City Loan, to be recorded against the Property. (lll) "Investor Limited Partner" means Wells Fargo Affordable Housing Community Development Corporation, a North Carolina corporation, its successors and assigns. (mmm) "Issuer" has the meaning set forth in Section 1.1(k)(ii). (nnn) "Lenders' Share of Residual Receipts" means fifty percent (50%) of Residual Receipts. 10 863\101\1955463.5 (ooo) "Loan Documents" means this Agreement, the Note, the Regulatory Agreements, the Intercreditor Agreement, and the Deed of Trust. (ppp) "Loan" has the meaning set forth in Paragraph F of the Recitals. (qqq) "NEPA" has the meaning set forth in Paragraph K of the Recitals. (rrr) "Net Proceeds of Permanent Financing" means the amount by which Permanent Financing exceeds the Final Development Costs. (sss) "Note" means the promissory note of even date herewith that evidences Borrower's obligation to repay the Loan. (ttt) "Operating Reserve Account" has the meaning set forth in Section 4.2(b). (uuu) "Partnership Agreement" means the agreement between Borrower's general partner and the Investor Limited Partner that governs the operation and organization of Borrower as a California limited partnership. (vvv) "Partnership/Asset Fee" means: (i) partnership management fees (including any asset management fees) payable pursuant to the Partnership Agreement to any partner or affiliate of Borrower or any affiliate of a partner of Borrower, if any, during the Fifteen Year Compliance Period; and (ii) after expiration of the Fifteen Year Compliance Period, asset management fees payable to Borrower, in the amounts approved by the County as set forth in Section 3.18. (www) "Permanent Conversion" means the date the Bank Construction Loan converts to the CCRC Loan. (xxx) "Permanent Financing" means the sum of the following amounts: (i) the Adjusted County Loan; (ii) the Adjusted City Loan; (iii) the Adjusted AHSC HCD Loan; (iv) the CCRC Loan; (v) the EDI Loan; (vi) the Tax Credit Investor Equity; and (vii) the GP Capital Contribution. (yyy) "Property" has the meaning set forth in Paragraph D of the Recitals. (zzz) "Regulatory Agreements" means the County Regulatory Agreement and the HOME/CDBG Regulatory Agreement. (aaaa) "Rental Shortfall Due Date" has the meaning set forth in Section 2.8(c). (bbbb) "Rental Shortfall Payment" has the meaning set forth in Section 2.8(c). (cccc) "Replacement Reserve Account" has the meaning set forth in Section 4.2(a). 11 863\101\1955463.5 (dddd) "Residual Receipts" means for each calendar year, the amount by which Gross Revenue exceeds Annual Operating Expenses. (eeee) "Retention Amount" means Thirty Thousand Dollars ($30,000) of the HOME Loan, the disbursement of which is described in Section 2.7. (ffff) "Senior Loan" has the meaning set forth in Section 2.5. (gggg) "Special City Loan Payment" has the meaning in Section 3(b) of the Intercreditor Agreement. (hhhh) "Special County Loan Payment" has the meaning in Section 2.8(b). (iiii) "Statement of Residual Receipts" means an itemized statement of Residual Receipts. (jjjj) "Tax Credit Investor Equity" has the meaning set forth in Section 1.1(k)(v). (kkkk) "TCAC" means the California Tax Credit Allocation Committee. (llll) "Tenant" means the tenant household that occupies a unit in the Development. (mmmm) "Term" means the period of time that commences on the date of this Agreement, and expires, unless sooner terminated in accordance with this Agreement, on the fifty-fifth (55th) anniversary of the Completion Date; provided, however, if a record of the Completion Date cannot be located or established, the Term will expire on the fifty-seventh (57th) anniversary of this Agreement. (nnnn) "Transfer" has the meaning set forth in Section 4.13 below. Section 1.2 Exhibits The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference: Exhibit A: Legal Description of the Property Exhibit B: Approved Development Budget Exhibit C: NEPA Mitigation Requirements ARTICLE 2 LOAN PROVISIONS Section 2.1 Loan. Upon satisfaction of the conditions set forth in Section 2.6 and Section 2.7 of this Agreement, the County shall lend to Borrower the Loan for the purposes set forth in Section 2.3 12 863\101\1955463.5 of this Agreement. Borrower's obligation to repay the Loan is evidenced by the Note. Section 2.2 Interest. (a) Subject to the provisions of subsection (b) below, simple interest will accrue on the outstanding principal balance of the Loan at a per annum rate of interest equal to three percent (3%), commencing on the date of disbursement. (b) Upon the occurrence of an Event of a Default, interest on the outstanding principal balance of the Loan will begin to accrue, beginning on the date of such occurrence and continuing until the date the Loan is repaid in full or the Event of Default is cured, at the Default Rate. Section 2.3 Use of Loan Funds. (a) Borrower shall use the HOME Loan for closing costs, permits, fees, and construction costs, consistent with the Approved Development Budget. Use of the HOME Loan for reimbursement of costs incurred prior to the date of this Agreement is subject to Section 92.206(d)(1) of the HOME Regulations. (b) Borrower shall use the CDBG Loan for acquisition, demolition and clean- up costs, consistent with the Approved Development Budget. (c) Borrower may not use the Loan proceeds for any other purposes without the prior written consent of the County. Section 2.4 Security. In consideration of the Loan, Borrower shall (i) secure its obligation to repay the Loan, as evidenced by the Note, by executing the Deed of Trust, and cause or permit it to be recorded as a lien against the Property, and (ii) execute the Regulatory Agreements, and the Intercreditor Agreement, and cause or permit them to be recorded against the Property. Section 2.5 Subordination. (a) Any agreement by the County to subordinate the Deed of Trust and/or Regulatory Agreements to an encumbrance securing and/or evidencing the AHSC HCD Loan, the Bank Construction Loan, the CCRC Loan, or any loan obtained by Borrower to refinance the Bank Construction Loan (collectively, the "Senior Loan") will be subject to the satisfaction of each of the following conditions: (i) All of the proceeds of the Senior Loan, less any transaction costs, are used to provide acquisition, construction and/or permanent financing for the Development. (ii) The lender of the Senior Loan is a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with Borrower or any of Borrower's affiliates, other than as a depositor or a lender. 13 863\101\1955463.5 (iii) Borrower demonstrates to the County's satisfaction that subordination of the Deed of Trust and the Regulatory Agreements is necessary to secure adequate acquisition, construction, and/or permanent financing to ensure the viability of the Development, including the operation of the Development as affordable housing, as required by the Loan Documents. To satisfy this requirement, Borrower must provide to the County, in addition to any other information reasonably required by the County, evidence demonstrating that the proposed amount of the Senior Loan is necessary to provide adequate acquisition, construction, and/or permanent financing to ensure the viability of the Development, and adequate financing for the Development would not be available without the proposed subordination. (iv) The subordination agreement(s) is structured to minimize the risk that the Deed of Trust and the Regulatory Agreements will be extinguished as a result of a foreclosure by the Bank or other holder of the Senior Loan. To satisfy this requirement, the subordination agreement must provide the County with adequate rights to cure any defaults by Borrower, including: (1) providing the County or its successor with copies of any notices of default at the same time and in the same manner as provided to Borrower; and (2) providing the County with a cure period of at least sixty (60) days to cure any default. (v) The subordination(s) of the Loan is effective only during the original term of the Senior Loan (including the pre-approved extensions for the Bank Construction Loan set forth in Sections 3.6 and 3.7 of the loan agreement evidencing the Bank Construction Loan) and any additional extension of its term that is approved in writing by the County. (vi) The subordination does not limit the effect of the Deed of Trust and the Regulatory Agreements before a foreclosure, nor require the consent of the holder(s) of the Senior Loan prior to the County exercising any remedies available to the County under the Loan Documents. (b) Upon a determination by the County's Deputy Director – Department of Conservation and Development that the conditions in Subsection (a) have been satisfied, the Deputy Director – Department of Conservation and Development or his/her designee will be authorized to execute the approved subordination agreement without the necessity of any further action or approval. (c) The County agrees to subordinate the Deed of Trust and the Regulatory Agreements to that certain Rental Assistance Demonstration (RAD) Use Agreement to be entered into between HUD and Borrower, pursuant to a form of subordination agreement provided by HUD and approved by the County. Section 2.6 Conditions Precedent to Disbursement of Loan Funds for Construction. Until the conditions set forth in Section 2.7 have been met, the disbursements made pursuant to this Agreement may not exceed Two Million Seventy Thousand Dollars ($2, 070,000). The 14 863\101\1955463.5 County is not obligated to disburse any portion of the Loan, or to take any other action under the Loan Documents unless all of the following conditions have been and continue to be satisfied: (a) There exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default under this Agreement; (b) Borrower holds title to the Property or is acquiring title to the Property simultaneously with the disbursement of the Loan proceeds; (c) Borrower has delivered to the County a copy of a corporate resolution authorizing Borrower to obtain the Loan and all other Approved Financing, and execute the Loan Documents; (d) There exists no material adverse change in the financial condition of Borrower from that shown by the financial statements and other data and information furnished by Borrower to the County prior to the date of this Agreement; (e) Borrower has furnished the County with evidence of the insurance coverage meeting the requirements of Section 4.14 below; (f) Borrower has executed and delivered to the County the Loan Documents and has caused all other documents, instruments, and policies required under the Loan Documents to be delivered to the County; (g) The Deed of Trust, the Regulatory Agreements, and the Intercreditor Agreement, have been recorded against the Property in the Office of the Recorder of the County of Contra Costa; (h) A title insurer reasonably acceptable to the County is unconditionally and irrevocably committed to issuing an LP-10 2006 ALTA Lender's Policy of title insurance insuring the priority of the Deed of Trust in the amount of the Loan, subject only to such exceptions and exclusions as may be reasonably acceptable to the County, and containing such endorsements as the County may reasonably require. The Borrower shall provide whatever documentation (including an indemnification agreement), deposits or surety is reasonably required by the title company in order for the County's Deed of Trust to be senior in lien priority to any mechanics liens in connection with any start of construction that has occurred prior to the recordation of the Deed of Trust against the Property in the Office of the Recorder of the County of Contra Costa; (i) All environmental review necessary for the construction of the Development has been completed, and Borrower has provided the County evidence of planned compliance with all NEPA and CEQA requirements and mitigation measures applicable to construction, and evidence of compliance with all NEPA and CEQA requirements and mitigation measures applicable to preconstruction; (j) The County has determined the undisbursed proceeds of the Loan, together with other funds or firm commitments for funds that Borrower has obtained in connection with the construction of the Development, are not less than the amount the 15 863\101\1955463.5 County determines is necessary to pay for the construction of the Development and to satisfy all of the covenants contained in this Agreement and the Regulatory Agreements; (k) Borrower has obtained all permits and approvals necessary for the construction of the Development; (l) The County has received and approved the Bid Package for the subcontractors for the construction of the Development pursuant to Section 3.2 below; (m) The County has received and approved the general contractor's construction contract that the Borrower has entered or proposed to enter for the construction of the Development pursuant to Section 3.3 below; (n) The County has received and approved labor and material (payment) bonds and performance bonds as required pursuant to Section 3.4 below; (o) Borrower has closed the loans and obtained the equity financings that comprise the Approved Financing described in Section 1.1(k), subsections (i) and (ii), and (iv)-(vi) and has already received, or is eligible to receive, the funds; (p) The County has received a fully executed copy of the Partnership Agreement, in which the Investor Limited Partner is obligated to provide Borrower the Tax Credit Investor Equity; (q) The County has received fully executed Standard Agreements between the Borrower and HCD governing the commitment of the AHSC HCD Loan and the EDI Loan; (r) The County has received a fully executed copy of the Agreement to Enter Housing Assistance Payment Contract between Borrower and the Housing Authority governing the commitment of project-based section 8 rental assistance for thirty-nine (39) units in the Development by the Housing Authority; (s) The County has received a fully executed copy of the New Construction Agreement between Borrower and Housing Authority governing the commitment of project- based section 8 rental assistance through the Rental Assistance Demonstration Program for twenty-three (23) units in the Development by the Housing Authority; (t) The County has received reasonable evidence that the local match requirements set forth in 24 C.F.R. Section 92.218 et seq., have been satisfied pursuant to Section 4.1 of this Agreement; and (u) The County has received a written draw request from Borrower, including: (i) certification that the condition set forth in Section 2.6(a) continues to be satisfied; (ii) certification that the proposed uses of funds is consistent with the Approved Development Budget; (iii) the amount of funds needed; and, (iv) where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with improvements on the Property, the written request must be accompanied by: (1) certification by the Borrower's architect reasonably acceptable to the 16 863\101\1955463.5 County that the work for which disbursement is requested has been completed (although the County reserves the right to inspect the Property and make an independent evaluation); and (2) lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the County. Section 2.7 Conditions Precedent to Disbursement of Retention. The County is not obligated to disburse the Retention Amount unless the following conditions precedent are satisfied: (a) The County has received a completion report from Borrower setting forth: (i) the income, household size, race, and ethnicity of Tenants of the HOME/CDBG-Assisted Units; (ii) and the unit address, unit size, rent amount and utility allowance for all HOME/CDBG-Assisted Units; (b) The County has received a Final Cost Certification for the Development from Borrower showing all uses and sources; (c) The County has received from Borrower copies of the certificate of occupancy or equivalent final permit sign-offs for the Development; (d) The County has received from Borrower current evidence of the insurance coverage meeting the requirements of Section 4.14 below; (e) The County has received from Borrower a form of Tenant lease; (f) The County has received from Borrower a Marketing Plan and Tenant Selection Plan as defined in the HOME/CDBG Regulatory Agreement; (g) The County has received a copy of a social services plan and social services budget for the provision of social services to Tenants; (h) The County has received from Borrower evidence of marketing for any vacant HOME/CDBG-Assisted Unit in the Development such as copies of flyers, list of media ads, list of agencies and organizations receiving information on availability of such units, as applicable; (i) The County has received from Borrower all relevant contract activity information, including compliance with Section 3 requirements as set forth in Section 4.6(b)(x) of the HOME/CDBG Regulatory Agreement, and minority-owned (MBE) and women-owned (WBE) business requirements; (j) If Borrower was required to comply with relocation requirements as set forth in Section 4.6(b)(vi) of the HOME/CDBG Regulatory Agreement, the County has received from Borrower evidence of compliance with all applicable relocation requirements; (k) The County has received from Borrower a copy of the management agreement and contact information for the property manager of the Development and the name and phone number of the on-site property manager; 17 863\101\1955463.5 (l) If Borrower is required to pay prevailing wages under the Davis-Bacon Act (40 U.S.C. 3141-3148) by the HUD regulations governing the County Loan, the County has received confirmation that Borrower has submitted all certified payrolls to the County, and any identified payment issues have been resolved, or Borrower is working diligently to resolve any such issues; (m) The County has received from Borrower evidence of compliance with all NEPA mitigation requirements as set forth in Exhibit C; (n) The County has received a fully executed copy of the Housing Assistance Payment Contract between Borrower and the Housing Authority governing the provision of project-based section 8 rental assistance for thirty-nine (39) units in the Development by the Housing Authority; (o) The County has received a fully executed copy of the Housing Assistance Payment Contract between Borrower and the Housing Authority governing the provision of project-based section 8 rental assistance through the Rental Assistance Demonstration Program for twenty-three (23) units in the Development by the Housing Authority; and (p) The County has received a written draw request from Borrower, including certification that the condition set forth in Section 2.6(a) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Approved Development Budget, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. Borrower shall apply the disbursement for the purpose(s) requested. Section 2.8 Repayment Schedule. (a) Annual Payments of Loan. Commencing on June 1, 2019 and on June 1 of each year thereafter during the Term, Borrower shall make a Loan payment in an amount equal to the sum of (1) the County Loan Prorata Percentage of the Lenders' Share of Residual Receipts and (2) the County Additional Prorata Share multiplied by Borrower's Shared Portion of Residual Receipts (each such payment, an "Annual Payment"). The County shall apply all Annual Payments first, to accrued interest; and second, to principal. (b) Special Repayments of Loan from Net Proceeds of Permanent Financing. To the extent consistent with the regulations applicable to the AHSC HCD Loan, no later than ten (10) days after the date Borrower receives its final capital contribution from the Investor Limited Partner, Borrower shall pay to the County as a special repayment of the Loan, an amount equal to the result obtained by multiplying the County Additional Prorata Share by the Available Net Proceeds (the "Special County Loan Payment"). No later than one hundred eighty (180) days following completion of construction of the Development, Borrower shall submit to the County for its review a preliminary calculation of the Net Proceeds of Permanent Financing and a draft of the Final Cost Certification as defined Section 4.3 below. The County shall approve or disapprove Borrower's determination of the amount of the Net Proceeds of Permanent Financing in writing within thirty (30) days after receipt. If Borrower's determination is disapproved by the County, Borrower shall re-submit documentation to the County until the County approval is obtained. 18 863\101\1955463.5 (c) Special Repayment of HOME Loan for Failure to Lease. If on or before the Rental Shortfall Due Date, Borrower fails to cause each of the HOME/CDBG-Assisted Units to be rented to and occupied by an Eligible Household in accordance with Section 2.1(a) of the HOME/CDBG Regulatory Agreement, Borrower shall pay the County the Rental Shortfall Payment, plus accrued interest, on the Rental Shortfall Due Date. (i) The "Rental Shortfall Due Date" is the date that occurs eighteen (18) months after the Completion Date. (ii) The "Rental Shortfall Payment" is an amount equal to the result obtained by multiplying (1) the number of HOME/CDBG-Assisted Units that have not been rented to and occupied by an Eligible Household on or before the Rental Shortfall Due Date, by (2) a fraction, the numerator of which is the then-outstanding principal balance on the HOME Loan and the denominator of which is the number of HOME/CDBG-Assisted Units. (iii) Interest on the Rental Shortfall Payment will accrue in accordance with Section 2.2(a) through the Rental Shortfall Due Date. If the Rental Shortfall Payment is not paid on or before the Rental Shortfall Due Date, interest on the Rental Shortfall Payment will accrue at the Default Rate beginning on the day after the Rental Shortfall Due Date and continuing until the Rental Shortfall Payment is paid in full with interest. (d) Payment in Full of Loan. Borrower shall pay all outstanding principal and accrued interest on the Loan, in full, on the earliest to occur of: (i) any Transfer other than as permitted pursuant to Section 4.13; (ii) an Event of Default; and (iii) the expiration of the Term. (e) Prepayment. Borrower may prepay the Loan at any time without premium or penalty. However, the Regulatory Agreements and the Deed of Trust will remain in effect for the entire Term, regardless of any prepayment or Transfer. Section 2.9 Reports and Accounting of Residual Receipts. (a) Borrower shall keep and maintain at the principal place of business of the Borrower set forth in Section 7.9 below, or elsewhere with the County's written consent, full, complete and appropriate books, records and accounts necessary or prudent to evidence and substantiate in full detail Borrower's calculation of Residual Receipts and disbursements of Residual Receipts. (b) In connection with the Annual Payment, Borrower shall furnish to the County: (i)The Statement of Residual Receipts for the relevant period. The first Statement of Residual Receipts will cover the period that begins on January 1, 2018 and ends on December 31st of that same year. Subsequent statements of Residual Receipts will cover the twelve-month period that ends on December 31 of each year; (ii)A statement from the independent public accountant that audited the Borrower's financial records for the relevant period, which statement must confirm that 19 863\101\1955463.5 Borrower's calculation of the Lenders' Share of Residual Receipts and Borrower's Shared Portion of Residual Receipts is accurate based on Gross Revenue and Annual Operating Expenses; and (iii)Any additional documentation reasonably required by the County to substantiate Borrower's calculation of Lenders' Share of Residual Receipts and Borrower's Shared Portion of Residual Receipts. (c) The receipt by the County of any statement pursuant to subsection (b) above or any payment by Borrower or acceptance by the County of any Loan repayment for any period does not bind the County as to the correctness of such statement or payment. The County may audit the Residual Receipts and all books, records, and accounts pertaining thereto pursuant to Section 4.6 below. Section 2.10 Non-Recourse. Except as provided below, neither Borrower, nor any partner of Borrower, has any direct or indirect personal liability for payment of the principal of, and interest on, the Loan. Following recordation of the Deed of Trust, the sole recourse of the County with respect to the principal of, or interest on, the Note will be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability limits or impairs the enforcement of all the rights and remedies of the County against all such security for the Note, or impairs the right of County to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto. The foregoing limitation of liability is intended to apply only to the obligation to repay the principal and interest on the Note. Except as hereafter set forth; nothing contained herein is intended to relieve Borrower of its obligation to indemnify the County under the Loan Documents including but not limited to Sections 3.8, 3.9, 4.7, and 7.4 of this Agreement and Sections 2.1(c), 2.1(d), and 4.6(b)(vi) of the HOME/CDBG Regulatory Agreement, or liability for: (i) loss or damage of any kind resulting from waste, fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by Borrower other than in accordance with the Deed of Trust; and (iv) the misappropriation of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Property. ARTICLE 3 CONSTRUCTION OF THE DEVELOPMENT Section 3.1 Permits and Approvals. Borrower shall obtain all permits or permit ready letter and approvals necessary for the construction of the Development no later than January 17, 2017, or such later date that the County approves in writing. 20 863\101\1955463.5 Section 3.2 Bid Package. Not later than thirty (30) days prior to Borrower's proposed date for advertising the Bid Package, Borrower shall submit to the County a copy of Borrower's general contractor's proposed Bid Package. The County's Deputy Director, Department of Conservation and Development, or his or her designee, shall approve or disapprove the Bid Package within fifteen (15) days after receipt of the Bid Package by the County. If the County rejects the proposed Bid Package the reasons therefore must be given to Borrower. The Borrower will then have fifteen (15) days to revise the proposed Bid Package and resubmit it to the County. The County will then have fifteen (15) days to review and approve Borrower's new or corrected Bid Package. The provisions of this Section will continue to apply until a proposed Bid Package has been approved by the County. Borrower may not publish a proposed Bid Package until it has been approved by the County. Section 3.3 Construction Contract. (a) Not later than fifteen (15) days prior to the proposed Commencement of Construction, Borrower shall submit to the County for its approval a draft of the proposed construction contract for the Development. All construction work and professional services are to be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work or service in the State of California. Each contract that Borrower enters for construction of the Development is to provide that at least ten percent (10%) of the costs incurred will be payable only upon completion of the construction, subject to early release of retention for specified subcontractors upon approval by the County. The construction contract will include all applicable HOME and CDBG requirements set forth in Section 4.6 of the HOME/CDBG Regulatory Agreement. The County's approval of the construction contract may not be deemed to constitute approval of or concurrence with any term or condition of the construction contract except as such term or condition may be required by this Agreement. (b) Upon receipt by the County of the proposed construction contract, the County shall promptly review same and approve or disapprove it within ten (10) days. If the construction contract is not approved by the County, the County shall set forth in writing and notify Borrower of the County's reasons for withholding such approval. Borrower shall thereafter submit a revised construction contract for County approval, which approval is to be granted or denied in ten (10) days in accordance with the procedures set forth above. Any construction contract executed by Borrower for the Development is to be in the form approved by the County. Section 3.4 Construction Bonds. Not later than thirty (30) days prior to the proposed Commencement of Construction Borrower shall deliver to the County copies of labor and material bonds and performance bonds for the construction of the Development in an amount equal to one hundred percent (100%) of the scheduled cost of the construction of the Development. Such bonds must name the County as a co-obligee. 21 863\101\1955463.5 Section 3.5 Commencement of Construction. Borrower shall cause the Commencement of Construction of the Development to occur no later than January 31, 2017, or such later date that the County approves in writing, but in no event later than 1 year from date of this Agreement. For the purposes of this Agreement, "Commencement of Construction" means the date set for the start of construction of the Development in the notice to proceed issued by Borrower to Borrower's general contractor. Section 3.6 Completion of Construction. (a) Borrower shall diligently prosecute construction of the Development to completion, and shall cause the construction of the Development to be completed no later than January 31, 2019, or such later date that the County approves in writing. (b) Borrower shall give notice to the County upon completion of construction of the Development. Upon receipt of such notice the County will perform an inspection of the Development to determine if the Development was constructed in accordance with the HOME Regulations, including the property standards set forth in 24 C.F.R. 92.251. If the County determines the Development was not constructed in accordance with the HOME Regulations, the County will provide Borrower with a written report of the deficiencies. Borrower shall correct such deficiencies within the timeframe set forth in the notice provided to Borrower by the County. The Development may not be occupied until such deficiencies have been corrected to the satisfaction of the County. Section 3.7 Changes; Construction Pursuant to Plans and Laws. (a) Changes. Borrower shall construct the Development in conformance with (i) the plans and specifications approved by the City's Building Inspection Department, and (ii) the Approved Development Budget. Borrower shall notify the County in a timely manner of any changes in the work required to be performed under this Agreement, including any additions, changes, or deletions to the plans and specifications approved by the City. Written authorization from the County must be obtained before any of the following changes, additions, or deletions in work for the Development may be performed: (i) any change in the work the cost of which exceeds Fifty Thousand Dollars ($50,000); or (ii) any set of changes in the work the cost of which cumulatively exceeds One Hundred Thousand Dollars ($100,000) or ten percent (10%) of the Loan amount, whichever is less; or (iii) any material change in building materials or equipment, specifications, or the structural or architectural design or appearance of the Development as provided for in the plans and specifications approved by the County. The County's consent to any additions, changes, or deletions to the work does not relieve or release Borrower from any other obligations under this Agreement, or relieve or release Borrower or its surety from any surety bond. (b) Compliance with Laws. Borrower shall cause all work performed in connection with the Development to be performed in compliance with: (i) all applicable laws, codes (including building codes and codes applicable to mitigation of disasters such as earthquakes), ordinances, rules and regulations of 22 863\101\1955463.5 federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter; (ii) the property standards set out in 24 C.F.R. 92.251 as implemented by Section 5.6 of the HOME/CDBG Regulatory Agreement; and (iii) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. Borrower may permit the work to proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and Borrower is responsible to the County for the procurement and maintenance thereof. Section 3.8 Prevailing Wages. (a) Davis Bacon. To the extent required by applicable law Borrower shall cause construction of the Development to be in compliance with the prevailing wage requirements of the federal Davis-Bacon Act (40 U.S.C. 3141-3148). Borrower shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the County) the County 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 the Borrower, its contractor and subcontractors) to pay prevailing wages as determined pursuant to the prevailing wage provisions of the federal Davis-Bacon Act and implementing rules and regulations in connection with the construction of the Development or any other work undertaken or in connection with the Property. The requirements in this subsection survive the repayment of the Loan, and the reconveyance of the Deed of Trust. (b) State Prevailing Wages. (i) To the extent required by applicable law Borrower shall: (1) pay, and shall cause any consultants or contractors to pay, prevailing wages in the construction of the Development as those wages are determined pursuant to California Labor Code Section 1720 et seq.; (2) cause any consultants or contractors to employ apprentices as required by California Labor Code Section 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations (the "DIR"), and to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and implementing regulations of the DIR; (3) keep and retain, and shall cause any consultants and contractors to keep and retain, such records as are necessary to determine if such prevailing wages have been paid as required pursuant to California Labor Code Section 1720 et seq., and apprentices have been employed are required by California Labor Code Section 1777.5 et seq.; 23 863\101\1955463.5 (4) post at the Property, or shall cause the contractor to post at the Property, the applicable prevailing rates of per diem wages. Copies of the currently applicable current per diem prevailing wages are available from DIR; (5) cause contractors and subcontractors constructing the Development to be registered as set forth in California Labor Code Section 1725.5; (6) cause its contractors and subcontractors, in all calls for bids, bidding materials and the construction contract documents for the construction of the Development to specify that: (A) no contractor or subcontractor may be listed on a bid proposal nor be awarded a contract for the construction of the Development unless registered with the DIR pursuant to California Labor Code Section 1725.5; and (B) the construction of the Development is subject to compliance monitoring and enforcement by the DIR. (7) provide the County all information required by California Labor Code Section 1773.3 as set forth in the DIR's online form PWC-100 within 2 days of the award of any contract (https://www.dir.ca.gov/pwc100ext/); (8) cause its contractors to post job site notices, as prescribed by regulation by the DIR; and (9) cause its contractors to furnish payroll records required by California Labor Code Section 1776 directly to the Labor Commissioner, at least monthly in the electronic format prescribed by the Labor Commissioner. (ii) Borrower shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the County) the County 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 Borrower, its contractor and subcontractors) to pay prevailing wages as determined pursuant to California Labor Code Section 1720 et seq., to employ apprentices pursuant to California Labor Code Section 1777.5 et seq., to meet the conditions of California Labor Code Section 1771.4, and implementing regulations of the DIR, or to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and 1771.4, and the implementing regulations of the DIR, in connection with the construction of the Development or any other work undertaken or in connection with the Property. The requirements in this Section survive the repayment of the Loan, and the reconveyance of the Deed of Trust. Section 3.9 Accessibility. Borrower shall construct the Development in compliance with all applicable federal and state disabled persons accessibility requirements including but not limited to the Federal Fair Housing Act; Section 504 of the Rehabilitation Act of 1973 ("Section 504"); Title II and/or Title 24 863\101\1955463.5 III of the Americans with Disabilities Act; and Title 24 of the California Code of Regulations (collectively, the "Accessibility Requirements"). In compliance with Section 504, a minimum of four (4) units in the Development must be constructed to be fully accessible to households with a mobility impaired member and an additional two (2) units in the Development must be constructed to be fully accessible to hearing and/or visually impaired persons. In compliance with Section 504 Borrower shall provide the County with a certification from the Development architect that to the best of the architect's knowledge, the Development complies with all federal and state accessibility requirements applicable to the Development. Borrower shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the County) the County 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 Borrower, its architect, contractor and subcontractors) to construct the Development in accordance with the Accessibility Requirements. The requirements in this Subsection survive repayment of the Loan and the reconveyance of the Deed of Trust. Section 3.10 Equal Opportunity. During the construction of the Development discrimination on the basis of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry, or disability in the hiring, firing, promoting, or demoting of any person engaged in the construction work is not allowed. Section 3.11 Minority and Women-Owned Contractors. Borrower shall use its best efforts to afford minority-owned and women-owned business enterprises the maximum practicable opportunity to participate in the construction of the Development. Borrower shall, at a minimum, notify applicable minority-owned and women- owned business firms located in Contra Costa County of bid opportunities for the construction of the Development. A listing of minority owned and women owned businesses located in the County and neighboring counties is available from the County. Documentation of such notifications must be maintained by Borrower and available to the County upon request. Section 3.12 Progress Reports. Until such time as Borrower has received a certificate of occupancy from the City for the Development, Borrower shall provide the County with quarterly progress reports regarding the status of the construction of the Development, including a certification that the actual construction costs to date conform to the Approved Development Budget, as it may be amended from time to time pursuant to Section 3.16 below. Section 3.13 Construction Responsibilities. (a) Borrower is responsible for the coordination and scheduling of the work to be performed so that commencement and completion of the construction of the Development takes place in accordance with this Agreement. (b) Borrower is solely responsible for all aspects of Borrower's conduct in connection with the Development, including (but not limited to) the quality and suitability of 25 863\101\1955463.5 the plans and specifications, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the County with reference to the Development is solely for the purpose of determining whether Borrower is properly discharging its obligations to the County, and may not be relied upon by Borrower or by any third parties as a warranty or representation by the County as to the quality of the design or construction of the Development. Section 3.14 Mechanics Liens, Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Property or a stop notice affecting the Loan is served on the County or any other lender or other third party in connection with the Development, then Borrower shall, within twenty (20) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the County a surety bond in sufficient form and amount, or provide the County with other assurance satisfactory to the County that the claim of lien or stop notice will be paid or discharged. (b) If Borrower fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section, then in addition to any other right or remedy, the County may (but is under no obligation to) discharge such lien, encumbrance, charge, or claim at Borrower's expense. Alternately, the County may require Borrower to immediately deposit with the County the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The County may use such deposit to satisfy any claim or lien that is adversely determined against Borrower. (c) Borrower shall file a valid notice of cessation or notice of completion upon cessation of construction work on the Development for a continuous period of thirty (30) days or more, and take all other steps necessary to forestall the assertion of claims of lien against the Property. Borrower authorizes the County, but the County has no obligation, to record any notices of completion or cessation of labor, or any other notice that the County deems necessary or desirable to protect its interest in the Development and Property. Section 3.15 Inspections. Borrower shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Development by the County and by public authorities during reasonable business hours during the Term, for the purposes of determining compliance with this Agreement. Section 3.16 Approved Development Budget; Revisions to Budget. As of the date of this Agreement, the County has approved the Approved Development Budget set forth in Exhibit B. Borrower shall submit any required amendments to the Approved Development Budget to the County for approval within five (5) days after the date Borrower receives information indicating that actual costs of the Development vary or will vary from the costs shown on the Approved Development Budget. Written consent of the County will be required to amend the Approved Development Budget. 26 863\101\1955463.5 Section 3.17 Developer Fee. Subject to the limitations set forth below, the maximum cumulative Developer Fee that may be paid to any entity or entities providing development services to the Development is not to exceed the amount allowed by TCAC and as approved by the County. For the purposes of this Agreement "Developer Fee" has the meaning set forth in California Code of Regulations, Title 4, Section 10302(l). The amount of Developer Fee paid up-front out of Development sources is not to exceed One Million Five Hundred Thousand Dollars ($1,500,000) (the "Up-Front Fee"). Based on documentation provided to the County by the Borrower showing justification for additional Developer Fee, the County has approved an additional Five Hundred Thousand Dollars ($500,000) of Developer Fee that may be paid on a deferred basis out of Annual Operating Expenses (the "Deferred Fee"), provided that the amount of the Deferred Fee may be increased by the amount of Up-Front Fee not paid out of Development Sources. In no event may the total amount of Developer Fee paid up-front or paid on a deferred basis out of Annual Operating Expenses exceed Two Million Dollars ($2,000,000). Section 3.18 Partnership/Asset Fee. During the Fifteen Year Compliance Period, the Partnership/Asset Fee is not to exceed Thirty-Three Thousand Five Hundred Dollars ($33,500) per year. After the expiration of the Fifteen Year Compliance Period, the Partnership/Asset Fee is not to exceed Twenty-Five Thousand Dollars ($25,000) per year. Section 3.19 NEPA Mitigation Requirements. Borrower shall comply with the NEPA mitigation requirements set forth in the attached Exhibit C in the construction of the Development. ARTICLE 4 LOAN REQUIREMENTS Section 4.1 Match Requirement. The Borrower shall ensure that the Loan is matched with a minimum of Three Hundred Sixty-Eight Thousand Seven Hundred Fifty Dollars ($368,750) in other, non-federal sources, pursuant to and eligible under applicable HOME Regulations. Section 4.2 Reserve Accounts. (a) Replacement Reserve Account. Borrower shall establish and maintain an account that is available for capital expenditures for repairs and replacement necessary to maintain the Development in the condition required by the Loan Documents (the "Replacement Reserve Account"). Borrower shall make annual deposits to the Replacement Reserve Account in the amounts required in the Partnership Agreement and/ or the documents evidencing the Senior Loan, whichever is greater. In no event shall the annual 27 863\101\1955463.5 amount deposited in the Replacement Reserve Account exceed Six Hundred Dollars ($600) per unit, increasing by the applicable consumer price index every five (5) years, or such greater amount required in connection with the Partnership Agreement or any permanent financing, and approved by the County. (b) Operating Reserve Account. Borrower shall establish and maintain an account that is available to fund operating deficits (which is the amount by which Annual Operating Expenses exceed Gross Revenue for any period) (the "Operating Reserve Account"). Borrower shall capitalize the Operating Reserve Account in the amount required by TCAC (currently three months of Annual Operating Expenses); provided, however that if the Partnership Agreement or the documents evidencing the CCRC Loan require the Operating Reserve Account to be capitalized in an amount greater than the TCAC requirement, Borrower shall capitalize the Operating Reserve Account as required by the Partnership Agreement or the documents evidencing the CCRC Loan, as applicable, for as long as the Partnership Agreement or the CCRC Loan, as applicable, is outstanding. In no event may the amount held in the Operating Reserve Account exceed six (6) months gross rent from the Development (as such rent may vary from time to time) which limitation does not include amounts held in any other reserves required for the Development. Section 4.3 Financial Accountings and Post-Completion Audits. (a) No later than ninety (90) days following completion of construction of the Development, Borrower shall provide to the County for its review and approval a financial accounting of all sources and uses of funds for the Development. (b) No later than one hundred twenty (120) days after Permanent Conversion, Borrower shall submit an audited financial report showing the sources and uses of all funds utilized for the Development. This requirement may be satisfied by providing the Final Cost Certification to the County. "Final Cost Certification" means the Final Cost Certification Sources and Uses of Funds prepared by Borrower for the Development that: (i) Borrower submits to TCAC; and (ii) has been prepared using generally accepted accounting standards in effect in the United States of America from time to time, consistently applied. Section 4.4 Approval of Annual Operating Budget. At the beginning of each year of the Term, Borrower shall provide to the County an annual budget for the operation of the Development. The County may request additional information to assist the County in evaluating the financial viability of the Development. Unless rejected by the County in writing within thirty (30) days after receipt of the budget, the budget will be deemed accepted. If rejected by the County in whole or in part, Borrower shall submit a new or corrected budget within thirty (30) calendar days after notification of the County's rejection and the reasons therefor. The provisions of this Section relating to time periods for resubmission of new or corrected budgets will continue to apply until such budget has been approved by the County. Section 4.5 Information. Borrower shall provide any information reasonably requested by the County in 28 863\101\1955463.5 connection with the Development, including (but not limited to) any information required by HUD in connection with Borrower's use of the Loan funds. Section 4.6 County Audits. (a) Each year, Borrower shall provide the County with a copy of Borrower's annual audit, which is to include information on all of Borrower's activities and not just those pertaining to the Development. (b) In addition, the County may, at any time, audit all of Borrower's books, records, and accounts pertaining to the Development including but not limited to the Residual Receipts of the Development. Any such audit is to be conducted during normal business hours at the principal place of business of Borrower and wherever records are kept. Immediately after the completion of an audit, the County shall deliver a copy of the results of the audit to Borrower. (c) If it is determined as a result of an audit that there has been a deficiency in a loan repayment to the County then such deficiency will become immediately due and payable, with interest at the Default Rate from the date the deficient amount should have been paid. In addition, if the audit determines that Residual Receipts have been understated for any year by the greater of: (i) Two Thousand Five Hundred Dollars ($2,500); and (ii) an amount that exceeds five percent (5%) of the Residual Receipts, then, in addition to paying the deficiency with interest, Borrower shall pay all of the County's costs and expenses connected with the audit and review of Borrower's accounts and records. Section 4.7 Hazardous Materials. (a) Borrower shall keep and maintain the Property (including but not limited to, soil and ground water conditions) in compliance with all Hazardous Materials Laws and may not cause or permit the Property to be in violation of any Hazardous Materials Law. Borrower may not cause or permit the use, generation, manufacture, storage or disposal of on, under, or about the Property or transportation to or from the Property of any Hazardous Materials, except such of the foregoing as may be customarily used in construction of projects like the Development or kept and used in and about residential property of this type. (b) Borrower shall immediately advise the County in writing if at any time it receives written notice of any Hazardous Materials Claims, and Borrower's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" (as defined in California Health and Safety Code Section 25117.4) under the provision of California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. (c) The County has the right to join and participate in, as a party if it so elects, and be represented by counsel acceptable to the County (or counsel of its own choice if a conflict exists with Borrower) in any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys ' fees in connection 29 863\101\1955463.5 therewith paid by Borrower. (d) Borrower shall indemnify and hold harmless the County and its board members, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, fine, penalty, judgment, award, settlement, expense or liability, directly or indirectly arising out of or attributable to: (i) any actual or alleged past or present violation of any Hazardous Materials Law; (ii) any Hazardous Materials Claim; (iii) any actual or alleged past or present use, generation, manufacture, storage, release, threatened release, discharge, disposal, transportation, or presence of Hazardous Materials on, under, or about the Property; (iv) any investigation, cleanup, remediation, removal, or restoration work of site conditions of the Property relating to Hazardous Materials (whether on the Property or any other property); and (v) the breach of any representation of warranty by or covenant of Borrower in this Section 4.7, and Section 5.1(m). Such indemnity shall include, without limitation: (x) all consequential damages; (y) the costs of any required or necessary investigation, repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (z) all reasonable costs and expenses incurred by the County in connection with clauses (x) and (y), including but not limited to reasonable attorneys' fees and consultant fees. This indemnification applies whether or not any government agency has issued a cleanup order. Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property, (2) loss or restriction of use of rentable space on the Property, (3) adverse effect on the marketing of any rental space on the Property, and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties). This obligation to indemnify will survive termination of this Agreement and will not be diminished or affected in any respect as a result of any notice, disclosure, knowledge, if any, to or by the County of Hazardous Materials. (e) Without the County's prior written consent, which will not be unreasonably withheld, Borrower may not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in the County's judgment, impair the value of the County's security hereunder; provided, however, that the County's prior consent is not necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the County's consent before taking such action, provided that in such event Borrower shall notify the County as soon as practicable of any action so taken. The County agrees not to withhold its consent, where such consent is required hereunder, if: (i) a particular remedial action is ordered by a court of competent jurisdiction; (ii) Borrower will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Borrower establishes to the satisfaction of the County that there is no reasonable alternative to such remedial action which would result in less impairment of the County's security hereunder; or (iv) the action has been agreed to 30 863\101\1955463.5 by the County. (f) Borrower hereby acknowledges and agrees that: (i) this Section is intended as the County's written request for information (and Borrower's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5; and (ii) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736. (g) In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the County's or the trustee's rights and remedies under the Deed of Trust, the County may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to: (i) waive its lien on such environmentally impaired or affected portion of the Property; and (ii) exercise, (1) the rights and remedies of an unsecured creditor, including reduction of its claim against Borrower to judgment, and (2) any other rights and remedies permitted by law. For purposes of determining the County's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), Borrower will be deemed to have willfully permitted or acquiesced in a release or threatened release of Hazardous Materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and Borrower knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the County in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the Default Rate, until paid, will be added to the indebtedness secured by the Deed of Trust and is due and payable to the County upon its demand made at any time following the conclusion of such action. Section 4.8 Maintenance; Damage and Destruction. (a) During the course of both construction and operation of the Development, Borrower shall maintain the Development and the Property in good repair and in a neat, clean and orderly condition, and in accordance with the Regulatory Agreements. (b) Subject to the requirements of senior lenders, and if economically feasible in the County's judgment after consultation with Borrower, if any improvement now or in the future on the Property is damaged or destroyed, then Borrower shall, at its cost and expense, diligently undertake to repair or restore such improvement consistent with the plans and specifications approved by the County with such changes as have been approved by the County. Such work or repair is to be commenced no later than the later of one hundred twenty (120) days, or such longer period approved by the County in writing, after the damage 31 863\101\1955463.5 or loss occurs or thirty (30) days following receipt of the insurance or condemnation proceeds, and is to be complete within one (1) year thereafter. Any insurance or condemnation proceeds collected for such damage or destruction are to be applied to the cost of such repairs or restoration and, if such insurance or condemnation proceeds are insufficient for such purpose, then Borrower shall make up the deficiency. If Borrower does not promptly make such repairs then any insurance or condemnation proceeds collected for such damage or destruction are to be promptly delivered by Borrower to the County as a special repayment of the Loan, subject to the rights of the senior lenders, if any. Section 4.9 Fees and Taxes. Borrower is solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Development, and shall pay such charges prior to delinquency and at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property. Borrower is also solely responsible for payment of all personal property taxes, and all franchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, and shall pay such charges prior to delinquency and at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property. However, Borrower is not required to pay and discharge any such charge so long as: (i) the legality thereof is being contested diligently and in good faith and by appropriate proceedings; and (ii) if requested by the County, Borrower deposits with the County any funds or other forms of assurance that the County in good faith from time to time determines appropriate to protect the County from the consequences of the contest being unsuccessful. In the event Borrower exercises its right to contest any tax, assessment, or charge against it, Borrower, on final determination of the proceeding or contest, will immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. Borrower shall not apply for a property tax exemption for the Property under any provision of law except California Revenue and Taxation Section 214(g) without the prior written consent of the County. Section 4.10 Notice of Litigation. Borrower shall promptly notify the County in writing of any litigation that has the potential to materially affect Borrower or the Property and of any claims or disputes that involve a material risk of such litigation. Section 4.11 Operation of Development as Affordable Housing. Borrower shall operate the Development (i) in accordance with all applicable laws, codes, ordinances, rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter, and (ii) as an affordable housing development consistent with: (1) HUD's requirements for use of CDBG Funds and HOME Funds; (2) the 32 863\101\1955463.5 Regulatory Agreements; (3) any other regulatory requirements imposed on Borrower including but not limited to regulatory agreements associated with the City Loan, AHSC HCD Loan, and Low Income Housing Tax Credits provided by TCAC; and (4) any regulatory requirements imposed on Borrower related to the rental subsidies provided to the Development. Section 4.12 Nondiscrimination. (a) Borrower covenants by and for itself and its successors and assigns that there will be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, age (except for lawful senior housing in accordance with state and federal law), familial status, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor may Borrower or any person claiming under or through Borrower 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 Property. The foregoing covenant will run with the land. (b) Nothing in this Section prohibits Borrower from requiring the HOME/CDBG-Assisted Units in the Development to be available to and occupied by income eligible households in accordance with the Regulatory Agreements. Section 4.13 Transfer. (a) For purposes of this Agreement, "Transfer" means any sale, assignment, or transfer, whether voluntary or involuntary, of: (i) any rights and/or duties under this Agreement; and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and Borrower retains title. The term "Transfer" excludes the leasing of any single unit in the Development to an occupant in compliance with the Regulatory Agreements. The County Deputy Director – Department of Conservation and Development is authorized to execute assignment and assumption agreements on behalf of the County to implement any approved Transfer. (b) Except as otherwise permitted in this Section 4.13, no Transfer is permitted without the prior written consent of the County, which the County may withhold in its sole discretion. The Loan will automatically accelerate and be due in full upon any Transfer made without the prior written consent of the County. (c) The County hereby approves future Transfers of the limited partner interest of Borrower provided that: (i) such Transfers do not affect the timing and amount of the Investor Limited Partner capital contributions provided for in the Partnership Agreement; and (ii) in subsequent Transfers, the Investor Limited Partner or an affiliate thereof, retains a membership or partnership interest and serves as a managing member or managing general partner of the successor limited partner. (d) The County hereby approves a Transfer of the Property from Borrower to 33 863\101\1955463.5 Eden, or a non-profit affiliate of Eden, and an assumption of the Loan by such transferee at the end of the Fifteen Year Compliance Period, provided that: (i) such Transfer is pursuant to an option or right of first refusal agreement referenced in the Partnership Agreement, and (ii) the transferee expressly assumes the obligations of the Borrower under the Loan Documents, utilizing a form of assignment and assumption agreement provided by the County. (e) The County hereby approves the purchase of the Investor Limited Partner interest by Eden, or a non-profit affiliate of Eden at the end of the Fifteen Year Compliance Period, provided that such Transfer is pursuant to an option or right of first refusal agreement referenced in the Partnership Agreement. (f) In the event the general partner of Borrower is removed by the limited partner of Borrower for cause following default under the Partnership Agreement, the County hereby approves the removal of the general partner and the Transfer of the general partner interest to (i) a 501(c)(3) tax exempt nonprofit corporation or other entity with a 501(c)(3) tax exempt nonprofit corporation member or partner, which entity is also a qualified CHDO entity, that is selected by the Investor Limited Partner and approved by the County, and (ii) the Investor Limited Partner or an affiliate thereof, but only for a period not to exceed ninety (90) days from the date of removal of the general partner, during which time such entity shall diligently seek a replacement general partner meeting the requirements of subsection (i) above. If any Transfer results in the removal or withdrawal of Borrower's general partner, Borrower agrees to repay all principal and accrued interest on the HOME Loan in full if the general partner is not replaced with a qualified CHDO entity in accordance with this Subsection. (g) The County hereby approves the grant of the security interests in the Development for Approved Financing. Section 4.14 Insurance Requirements. (a) Borrower shall maintain the following insurance coverage throughout the Term of the Loan: (i) Workers' Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident. (ii) Commercial General Liability insurance with limits not less than Two Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations. (iii) Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable. (iv) Builders' Risk insurance during the course of construction, and upon completion of construction, property insurance covering the Development, in form 34 863\101\1955463.5 appropriate for the nature of such property, covering all risks of loss, excluding earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the County, naming the County as a Loss Payee, as its interests may appear. Flood insurance must be obtained if required by applicable federal regulations. (v) Commercial crime insurance covering all officers and employees, for loss of Loan proceeds caused by dishonesty, in an amount approved by the County, naming the County a Loss Payee, as its interests may appear. (b) Borrower shall cause any general contractor, agent, or subcontractor working on the Development under direct contract with Borrower or subcontract to maintain insurance of the types and in at least the minimum amounts described in subsections (i), (ii), and (iii) above, except that the limit of liability for commercial general liability insurance for subcontractors must be One Million Dollars ($1,000,000), and must require that such insurance will meet all of the general requirements of subsections (d) and (e) below. (c) The required insurance must be provided under an occurrence form, and Borrower shall maintain the coverage described in subsection (a) continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit must be three times the occurrence limits specified above. (d) Commercial General Liability, Automobile Liability and Property insurance policies must be endorsed to name as an additional insured the County and its officers, agents, employees and members of the County Board of Supervisors. (e) All policies and bonds are to contain: (i) the agreement of the insurer to give the County at least thirty (30) days' notice prior to cancellation (including, without limitation, for non-payment of premium) or any material change in said policies; (ii) an agreement that such policies are primary and non-contributing with any insurance that may be carried by the County; (iii) a provision that no act or omission of Borrower shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (iv) a waiver by the insurer of all rights of subrogation against the County and its authorized parties in connection with any loss or damage thereby insured against. Section 4.15 Covenants Regarding Approved Financing and Partnership Agreement. (a) Borrower shall promptly pay the principal and interest when due on any Approved Financing. (b) Borrower shall promptly notify the County in writing of the existence of any default under any documents evidencing Approved Financing whether or not a default has been declared by the lender, and any defaults under the Partnership Agreement, and provide the County copies of any notice of default. (c) Borrower may not amend, modify, supplement, cancel or terminate the 35 863\101\1955463.5 Partnership Agreement or any documents related to any loan that is part of the Approved Financing without the prior written consent of the County except for amendments solely to effectuate Transfers permitted under Section 4.13 above. Borrower shall provide the County copies of all amendments, modifications, and supplements to the Partnership Agreement and any document related to any loan that is part of the Approved Financing. (d) Borrower may not incur any indebtedness of any kind other than Approved Financing or encumber the Development with any liens (other than liens for Approved Financing approved by the County) without the prior written consent of the County. (e) The Partnership Agreement may not include any provisions that conflict with the provisions of this Agreement, including, without limitation, the Residual Receipts payment provisions of Section 2.8 above. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER Section 5.1 Representations and Warranties. Borrower hereby represents and warrants to the County as follows and acknowledges, understands, and agrees that the representations and warranties set forth in this Article 5 are deemed to be continuing during all times when any portion of the Loan remains outstanding: (a) Organization. Borrower is duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted. (b) Authority of Borrower. Borrower has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (c) CHDO Requirement. Borrower's managing general partner is wholly owned and controlled by a qualified CHDO in good standing as defined in 24 C.F.R. 92.2, and required in 24 C.F.R. 92.300 (a)(1). (d) Authority of Persons Executing Documents. This Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Borrower, and all actions required under Borrower's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken. 36 863\101\1955463.5 (e) Valid Binding Agreements. The Loan Documents and all other documents or instruments executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Borrower enforceable against it in accordance with their respective terms. (f) No Breach of Law or Agreement. Neither the execution nor delivery of the Loan Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will: (i) conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever that is binding on Borrower, or conflict with any provision of the organizational documents of Borrower, or conflict with any agreement to which Borrower is a party; or (ii) result in the creation or imposition of any lien upon any assets or property of Borrower, other than liens established pursuant hereto. (g) Compliance with Laws; Consents and Approvals. The construction of the Development will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency. (h) Pending Proceedings. Borrower is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Borrower, threatened against or affecting Borrower or the Development, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversel y to Borrower, materially affect Borrower's ability to repay the Loan or impair the security to be given to the County pursuant hereto. (i) Title to Land. At the time of recordation of the Deed of Trust, Borrower will have good and marketable fee title to the Development and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than liens shown on the County's title policy provided pursuant to Section 2.6(h) above, or approved in writing by the County. (j) Financial Statements. The financial statements of Borrower and other financial data and information furnished by Borrower to the County fairly and accurately present the information contained therein. As of the date of this Agreement, there has not been any material adverse change in the financial condition of Borrower from that shown by such financial statements and other data and information. (k) Sufficient Funds. Borrower holds sufficient funds and/or binding commitments for sufficient funds to complete the acquisition of the Property and the construction of the Development in accordance with the terms of this Agreement. (l) Taxes. Borrower and its subsidiaries have filed all federal and other material tax returns and reports required to be filed, and have paid all federal and other 37 863\101\1955463.5 material taxes, assessments, fees and other governmental charges levied or imposed upon them or their income or the Property otherwise due and payable, except those that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principles. There is no proposed tax assessment against Borrower or any of its subsidiaries that could, if made, be reasonably expected to have a material adverse effect on the property, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of Borrower and its subsidiaries, taken as a whole, or which could result in (i) a material impairment of the ability of Borrower to perform under any loan document to which it is a party, or (ii) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower of any Loan Document. (m) Hazardous Materials. To the best of Borrower's knowledge, except as disclosed in writing by Borrower to the County prior to the date of this Agreement: (i) no Hazardous Material has been disposed of, stored on, discharged from, or released to or from, or otherwise now exists in, on, under, or around, the Property; (ii) neither the Property nor Borrower is in violation of any Hazardous Materials Law; and (iii) neither the Property nor Borrower is subject to any existing, pending or threatened Hazardous Materials Claims. ARTICLE 6 DEFAULT AND REMEDIES Section 6.1 Events of Default. Any one or more of the following constitutes an "Event of Default" by Borrower under this Agreement: (a) Failure to Construct. If Borrower fails to obtain permits, or to commence and prosecute construction of the Development to completion, within the times set forth in Article 3 above. (b) Failure to Make Payment. If Borrower fails to make any payment when such payment is due pursuant to the Loan Documents. (c) Failure to Submit Plans. If Borrower fails to submit a Marketing Plan or Tenant Selection Plan that is approved by the County in accordance with the HOME/CDBG Regulatory Agreement. (d) Breach of Covenants. If Borrower fails to duly perform, comply with, or observe any other condition, term, or covenant contained in this Agreement (other than as set forth in Section 6.1(a) through Section 6.1(c), and Section 6.1(e) through Section 6.1(m)), or in any of the other Loan Documents, and Borrower fails to cure such default within thirty (30) days after receipt of written notice thereof from the County to Borrower. (e) Default Under Other Loans. If a default is declared under any other financing for the Development by the lender of such financing and such default remains uncured following any applicable notice and cure period. 38 863\101\1955463.5 (f) Insolvency. If a court having jurisdiction makes or enters any decree or order: (i) adjudging Borrower to be bankrupt or insolvent; (ii) approving as properly filed a petition seeking reorganization of Borrower, or seeking any arrangement for Borrower under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (iii) appointing a receiver, trustee, liquidator, or assignee of Borrower in bankruptcy or insolvency or for any of their properties; (iv) directing the winding up or liquidation of Borrower if any such decree or order described in clauses (i) to (iv), inclusive, is unstayed or undischarged for a period of ninety (90) calendar days; or (v) Borrower admits in writing its inability to pay its debts as they fall due or will have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. The occurrence of any of the Events of Default in this paragraph will act to accelerate automatically, without the need for any action by the County, the indebtedness evidenced by the Note. (g) Assignment; Attachment. If Borrower assigns its assets for the benefit of its creditors or suffers a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon is returned or released within ninety (90) calendar days after such event or, if sooner, prior to sale pursuant to such sequestration, attachment, or execution. The occurrence of any of the events of default in this paragraph shall act to accelerate automatically, without the need for any action by the County, the indebtedness evidenced by the Note. (h) Suspension; Termination. If Borrower voluntarily suspends its business or, the partnership is dissolved or terminated, other than a technical termination of the partnership for tax purposes. (i) Liens on Property and the Development. If any claim of lien (other than liens approved in writing by the County) is filed against the Development or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Loan and the continued maintenance of said claim of lien or notice to withhold for a period of twenty (20) days, without discharge or satisfaction thereof or provision therefor (including, without limitation, the posting of bonds) satisfactory to the County. (j) Condemnation. If there is a condemnation, seizure, or appropriation of all or the substantial part of the Property and the Development. (k) Unauthorized Transfer. If any Transfer occurs other than as permitted pursuant to Section 4.13. (l) Representation or Warranty Incorrect. If any Borrower representation or warranty contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the County in connection with any of the Loan Documents, proves to have been incorrect in any material respect when made. (m) Applicability to General Partner. The occurrence of any of the events set forth in Section 6.1(f), through Section 6.1(h) in relation to Borrower's managing general partner, unless the removal and replacement of the Borrower's managing general partner in 39 863\101\1955463.5 accordance with Section 4.13(f), within the time frame set forth in Section 6.5 cures such a default. Section 6.2 Remedies. Upon the occurrence of an Event of Default and until such Even of Default is cured or waived, the County is relieved of any obligation to disburse any portion of the Loan. In addition, upon the occurrence of an Event of Default and following the expiration of all applicable notice and cure periods the County may proceed with any and all remedies available to it under law, this Agreement, and the other Loan Documents. Such remedies include but are not limited to the following: (a) Acceleration of Note. The County may cause all indebtedness of Borrower to the County under this Agreement and the Note, together with any accrued interest thereon, to become immediately due and payable. Borrower waives all right to presentment, demand, protest or notice of protest or dishonor. The County may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the County as a creditor and secured party under the law including the Uniform Commercial Code, including foreclosure under the Deed of Trust. Borrower is liable to pay the County on demand all reasonable expenses, costs and fees (including, without limitation, reasonable attorney's fees and expenses) paid or incurred by the County in connection with the collection of the Loan and the preservation, maintenance, protection, sale, or other disposition of the security given for the Loan. (b) Specific Performance. The County has the right to mandamus or other suit, action or proceeding at law or in equity to require Borrower to perform its obligations and covenants under the Loan Documents or to enjoin acts on things that may be unlawful or in violation of the provisions of the Loan Documents. (c) Right to Cure at Borrower's Expense. The County has the right (but not the obligation) to cure any monetary default by Borrower under a loan other than the Loan. Upon demand therefor, Borrower shall reimburse the County for any funds advanced by the County to cure such monetary default by Borrower, together with interest thereon from the date of expenditure until the date of reimbursement at the Default Rate. Section 6.3 Right of Contest. Borrower may contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute an Event of Default hereunder. Any such contest is to be prosecuted diligently and in a manner unprejudicial to the County or the rights of the County hereunder. Section 6.4 Remedies Cumulative. No right, power, or remedy given to the County by the terms of this Agreement or the other Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy is cumulative and in addition to every other right, power, or remedy given to the County by the terms of any such instrument, or by any statute or otherwise against Borrower and any other person. Neither the failure nor any delay on the part 40 863\101\1955463.5 of the County to exercise any such rights and remedies will operate as a waiver thereof, nor does any single or partial exercise by the County of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. Section 6.5 Notice and Cure Rights of Limited Partner. The County shall provide the Investor Limited Partner and any limited partner of Borrower who has requested written notice from the County ("Permitted Limited Partner") a duplicate copy of all notices of default that the County may give to or serve in writing upon Borrower pursuant to the terms of the Loan Documents, at the address set forth in Section 7.9, provided, the County shall have no liability to the Permitted Limited Partner for its failure to do so. The Permitted Limited Partner has the right, but not the obligation, to cure any default of Borrower set forth in such notice, during the applicable cure period described in the Loan Documents, and the County will accept tender of such cure as if delivered by Borrower. If the Permitted Limited Partner is unable to cure a default because Borrower's general partner is in bankruptcy and/or because the cure requires removal of the general partner of Borrower and the Permitted Limited Partner is proceeding diligently to remove the general partner of Borrower in order to effect a cure of the Default, the cure period will be extended for such reasonable time as is necessary for the Permitted Limited Partner to effect a cure of the Default, but in no event longer than sixty (60) days after the date of receipt by the Permitted Limited Partner of written notice of the default. ARTICLE 7 GENERAL PROVISIONS Section 7.1 Relationship of Parties. Nothing contained in this Agreement is to be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the County and Borrower or its agents, employees or contractors, and Borrower will at all times be deemed an independent contractor and to be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. Borrower has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regards to the construction and operation of the Development, Borrower is solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and must include requirements in each contract that contractors are solely responsible for similar matters relating to their employees. Borrower is solely responsible for its own acts and those of its agents and employees. Section 7.2 No Claims. Nothing contained in this Agreement creates or justifies any claim against the County by any person that Borrower may have employed or with whom Borrower may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the purchase of the Property, the construction or operation of the Development, and Borrower shall include similar requirements in any contracts 41 863\101\1955463.5 entered into for the construction or operation of the Development. Section 7.3 Amendments. No alteration or variation of the terms of this Agreement is valid unless made in writing by the Parties. The County Deputy Director, Department of Conservation and Development is authorized to execute on behalf of the County amendments to the Loan Documents or amended and restated Loan Documents as long as any discretionary change in the amount or terms of this Agreement is approved by the County's Board of Supervisors. Section 7.4 Indemnification. Borrower shall indemnify, defend and hold the County and its board members, supervisors, directors, officers, employees, agents, successors and assigns harmless against any and all claims, suits, actions, losses and liability of every kind, nature and description made against it and expenses (including reasonable attorneys' fees) which arise out of or in connection with this Agreement, including but not limited to the purchase of the Property and the development, construction, marketing and operation of the Development, except to the extent such claim arises from the gross negligence or willful misconduct of the County, its agents, and its employees. The provisions of this Section will survive the expiration of the Term and the reconveyance of the Deed of Trust. Section 7.5 Non-Liability of County Officials, Employees and Agents. No member, official, employee or agent of the County is personally liable to Borrower in the event of any default or breach of this Agreement by the County or for any amount that may become due from the County pursuant to this Agreement. Section 7.6 No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. Section 7.7 Discretion Retained By County. The County's execution of this Agreement in no way limits any discretion the County may have in the permit and approval process related to the construction of the Development. Section 7.8 Conflict of Interest. (a) Except for approved eligible administrative or personnel costs, no person described in Section 7.8(b) below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from the activity, or have a financial interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have immediate family or business ties, during, or at any time after, such person's tenure. Borrower shall exercise due diligence to ensure that the prohibition in this Section 7.8(a) is followed. 42 863\101\1955463.5 (b) The conflict of interest provisions of Section 7.8(a) above apply to any person who is an employee, agent, consultant, officer, or elected or appointed official of the County. (c) In accordance with California Government Code Section 1090 and the Political Reform Act, California Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of Borrower, or immediate family member of any of the preceding, may make or participate in a decision, made by the County or a County board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Borrower. Interpretation of this section is governed by the definitions and provisions used in the Political Reform Act, California Government Code Section 87100 et seq., its implementing regulations manual and codes, and California Government Code Section 1090. Section 7.9 Notices, Demands and Communications. All notices required or permitted by any provision of this Agreement must be in writing and sent by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows: County: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attention: Assistant Deputy Director Borrower: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541 Attention: President Investor Limited Partner: Wells Fargo Affordable Housing Community Development Corporation MAC D1053-170 301 S. College Street, 17th Floor Charlotte, NC 28288-0173 Attn: Director of Tax Credit Asset Management with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Dave Dahl, Esq. 43 863\101\1955463.5 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. Receipt will be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable). Section 7.10 Applicable Law. This Agreement is governed by the laws of the State of California. Section 7.11 Parties Bound. Except as otherwise limited herein, this Agreement binds and inures to the benefit of the parties and their heirs, executors, administrators, legal representatives, successors, and assigns. This Agreement is intended to run with the land and to bind Borrower and its successors and assigns in the Property and the Development for the entire Term, and the benefit hereof is to inure to the benefit of the County and its successors and assigns. Section 7.12 Attorneys' Fees. If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing party will have the right to recover its reasonable attorneys' fees and costs of suit from the other party. Section 7.13 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. Section 7.14 Force Majeure. In addition to specific provisions of this Agreement, performance by either party will not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock- outs, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of transportation, or court order. An extension of time for any cause will be deemed granted if notice by the party claiming such extension is sent to the other within ten (10) days from the commencement of the cause and such extension of time is not rejected in writing by the other party within ten (10) days after receipt of the notice. In no event will the County be required to agree to cumulative delays in excess of one hundred eighty (180) days. Section 7.15 County Approval. The County has authorized the County Assistant Deputy Director, Department of Conservation and Development to execute the Loan Documents and deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Loan and the existence of Borrower defaults under the Loan Documents. 44 863\101\1955463.5 Section 7.16 Waivers. Any waiver by the County of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the County to take action on any breach or default of Borrower or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Borrower to perform any obligation under this Agreement does not operate as a waiver or release from any of its obligations under this Agreement. Consent by the County to any act or omission by Borrower may not be construed to be consent to any other or subsequent act or omission or to waive the requirement for the County's written consent to future waivers. Section 7.17 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and are to be disregarded in interpreting any part of the Agreement 's provisions. Section 7.18 Entire Understanding of the Parties. The Loan Documents constitute the entire agreement of the parties with respect to the Loan. Section 7.19 Multiple Originals; Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. Remainder of Page Left Intentionally Blank Signature page County Loan Agreement 863\101\1955463.5 45 The parties are entering into this Agreement as of the last date set forth below. COUNTY: COUNTY OF CONTRA COSTA, a political subdivision of the State of California By: ____________________________________ John Kopchik Director, Department of Conservation and Development Date: ______________, 2016 APPROVED AS TO FORM: SHARON L. ANDERSON County Counsel By: ______________________ Kathleen Andrus Deputy County Counsel BORROWER: El Cerrito Senior, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its general partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its manager By:____________________ Its:____________________ Date: _____________, 2016 A-1 863\101\1955463.5 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY B-1 863\101\1955463.5 EXHIBIT B APPROVED DEVELOPMENT BUDGET C-1 863\101\1955463.5 EXHIBIT C NEPA MITIGATION REQUIREMENTS NEPA Mitigation and Monitoring Plan – _Hana Gardens – 10848 and 10860 San Pablo Avenue___ All mitigations / conditions of approval must be included in project agreement and/or legal documents. Compliance with mitigations / conditions of approval must be documented prior to final payment of County funds Mitigation Measure(s) Source Method and date County staff informed Project Sponsor Included in County loan document and /or project agreement Verification of Mitigation Measure(s) Responsible for implementation Mitigation Timing Responsible for monitoring and reporting on implementation Monitoring and reporting frequency Verification of compliance Historic Preservation HP1 Historic Resource Evaluation Addendum by Knapp & Verplank July 2013 City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Architect and contractor Ongoing Letter from Knapp & Verplank Copy of final building permit Archeological AR1 AR2 Northwest Information Center Recommendation City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Architect and contractor Ongoing Letter from Architect Copy of final building permit Endangered Species ES1 ES2 ES3 City of El Cerrito CEQA Environmental Impact Report City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Architect and contractor Ongoing – during construction Letter from Architect Copy of final building permit Air Quality AQ1 City of El Cerrito CEQA Environmental Impact Report City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Project sponsor, architect and contractor Once – after construction has been completed. Copy of Final approved Building Permit Letter from architect Geotechnical Investigation GT1 Geotechnical Investigation October 2011 City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Project sponsor, architect and contractor Once – after construction has been completed. Copy of Final approved Building Permit Letter from architect C-2 863\101\1955463.5 Noise Abatement and Control N1 HUD Noise Assessment by Rosen Goldberg Der & Lewitz, Inc. October 2014 City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Project sponsor, architect and contractor Once – after construction has been completed. Copy of Final approved Building Permit Letter from architect Construction Noise CN1 City of El Cerrito CEQA Environmental Impact Report City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Project sponsor, architect and contractor Once – after construction has been completed. Copy of Final approved Building Permit Letter from architect Storm Water SW1 City of El Cerrito CEQA Environmental Impact Report City of El Cerrito Approved Construction Plans Project Sponsor, architect, contractor Pre and post construction Project sponsor, architect and contractor Once – after construction has been completed. Copy of Final approved Building Permit Letter from architect Hazardous Materials HM1 HM2 HM3 HM4 Phase 1 Environmental Assessment by Adanta Inc. October 2014 Hazardous Building Materials Survey by Ninyo & Moore August 2008 Copy of Bay Area Quality Management District Permit Asbestos licensed contractor Lead-based paint licensed contractor Pre and post demolition Post construction Architect and contractor Once after demolition has been completed And Once after construction has been completed Final Certification/permit HP1 - Based on the Historic Resource Evaluation Addendum (July 2013), though the former florist shop has historic significance as part of the Mabuchi property, the Mabuchi House lacks distinctive markers of conventional architectural significance and will not be preserved. The former florist building will ultimately be converted into a community room and property manager office space, preserved as a reminder and educational tool as part of the legacy of the retail flower industry in Contra Costa County and El Cerrito. The former florist building will be “connected” to the Plaza through the use of paving materials and historic timeline markers etched into the paving. AR1 - All crews are required to have sensitivity training and to have both California trained Archeological Monitors as well as Qualified trained Native American Monitors while digging. AR2 - If archeological resources are encountered during construction, work should be temporarily halted in the vicinity of the discovered materials and workers should avoid altering the materials and their context until a qualified professional archeologist has evaluated the situation and provided appropriate recommendations. Project personnel should not collect cultural resources. Native American resources include chert or obsidian flakes, projectile points, mortars, and pestles; and dark friable soil containing shell and bone dietary debris, heat-affected rock, or human burials. Historic-period resources include stone or adobe foundations or wall; structures and remains with square nails; and refuse deposits or bottle dumps, often located in old wells or privies. ES1 - Preconstruction Surveys for Migratory Birds and Raptors. If clearing and/or construction activities shall occur during the migratory bird and raptor nesting season (January 15 – August 15), preconstruction surveys for active nest sites shall be conducted by a qualified biologist, up to 14 days before initiation of construction activities. The qualified biologist shall survey the construction zone and a 250-foot radius surrounding the construction zone to determine whether the activities taking place have the potential to disturb or otherwise harm nesting birds. C-3 863\101\1955463.5 If active nest(s) are identified during the preconstruction survey, a qualified biologist shall monitor the nest(s) to determ ine when the young have fledged. Monthly monitoring reports, documenting the nest status, shall be submitted to the City Planning Department until the nest(s) is deemed inactive. The biological monitor shall have the authority to cease construction if there is any sign of distress to a raptor or migratory bird. Reference to this requirement and the Migratory Bird Treaty Act shall be included in the construction specifications. ES2 - Surveys for Bird Nests in Structures. If demolition of vacant structures shall take place during of the migratory bird nesting season (April 15 – August 15), a survey for nesting migratory birds (e.g., swallows, phoebes, etc.) shall precede demolition. If bird nests are discovered in the structure, the building shall not be removed until the nest(s) become inactive. ES3 - Surveys of Potential Bat Roosts. Demolition of abandoned structures shall be preceded by a survey for bat presence. Structures being used by bats shall not be removed until it has been determined that bats are no longer using the site or until demolition can be carried out without harming any bats. AQ1 - During all phases of project development, the project shall adhere to BAAQMD’s Basic Construction Mitigation Measures from Table 8-1 of the BAAQMD’s CEQA Air Quality Guidelines (2011), which include the following: 1. All exposed surfaces (e.g., parking areas, staging areas, soil piles, graded areas, and unpaved access roads) shall be watered two times per day. 2. All haul trucks transporting soil, sand, or other loose material off-site shall be covered. 3. All visible mud or dirt track-out onto adjacent public roads shall be removed using wet power vacuum street sweepers at least once per day. The use of dry power sweeping is prohibited. 4. All roadways, driveways, and sidewalks to be paved shall be completed as soon as possible. Building pads shall be laid as soon as possible after grading unless seeding or soil binders are used. 5. Idling times shall be minimized either by shutting equipment off when not in use or reducing the maximum idling time to 5 minutes (as required by the California airborne toxics control measure, Title 13, Section 2485 of California Code of Regulations [CCR]). Clear signage shall be provided for construction workers at all access points. 6. All construction equipment shall be maintained and properly tuned in accordance with manufacturers’ specifications. All equipment shall be checked by a certified mechanic and determined to be running in proper condition prior to operation. 7. A publicly visible sign shall be posted with the telephone number and person to contact at the lead agency regarding dust complaints. This person shall respond and take corrective action within 48 hours. The Air District’s phone number shall also be visible to ensure compliance with applicable regulations. GT1 - Based on the recommendations of the “Geotechnical Investigation” conducted by AMSO Consulting Engineers dated October 18, 2011, the conclusions and recommendations listed on page 6 through 13 will be required. N1 - Based on the recommendations of the “HUD Noise Assessment” conducted by Rosen Goldberg Der & Lewitz, Inc. dated October 20, 2014, the noise attenuation recommendations listed on page 4 and in the figure 19 will be required. CN1 - To reduce construction noise and groundborne vibration, the following measures shall be implemented: 1. Post signs at the construction site that include permitted construction days and hours, a day and evening contact number for the job site, and a day and evening contact number for the City in the event of problems. 2. Notify the City and neighbors in advance of the schedule for each major phase of construction and expected loud activities. 3. When feasible, select “quiet” construction methods and equipment. 4. Locate noisy stationary equipment (e.g., generators and compressors) and material unloading and staging areas away from the most sensitive adjacent uses, such as residences to the south. 5. The construction contractor shall maintain all construction equipment in good working order and mufflers shall be inspected to be installed and functioning properly. Avoid unnecessary idling of equipment and engines. 6. Designate a construction noise coordinator. This coordinator would be available to respond to complaints from neighbors and take appropriate measures to reduce noise. Implementation of mitigation measure above would reduce impacts associated with temporary construction noise increases and ground-borne vibration and would provide additional measures to reduce noise levels from construction. The measure also includes a construction noise coordinator who would be alerted to any particular activities that affect neighbors. C-4 863\101\1955463.5 SW1 - Compliance with the requirements of the City Municipal Code and the Municipal Regional Stormwater NPDES Permit would ensure that project construction would not contribute to a violation of water quality standards, and the project would have a less than significant impact regarding the generation of substantial additional sources of polluted runoff that would contribute to a water quality violation. HM1 - The reported ACMs at the site structures should be incorporated into a building-specific Operations and Maintenance (O&M) Plan. This O&M plan should emphasize that these ACMs should not be disturbed. Any identified ACM in damaged condition should be promptly repaired or abated. Prior to renovation or demolition work that would disturb the identified ACMs, a licensed asbestos abatement removal contractor should remove the ACMs in compliance with the most recent federal, state, and local laws, regulations, standards, and/or codes governing abatement, transport, and disposal of ACMs. The removal work scope and requirements should be included in a work plan/specification developed by a California Certified Asbestos Consultant (CAC). It is also recommended that all abatement activities be conducted under the supervision of a CAC. While Ninyo & Moore provided an estimate of ACMs present at the site structures, it is the abatement contractor’s responsibility to confirm ACM quantities present. HM2 - The LBP/LCP reported at the site structures should be incorporated into building-specific O&M Plans. The LBP/LCP should not be disturbed. Any LBP/LCP in a damaged or non-intact condition should be abated and/or stabilized. Prior to renovation or demolition work that would disturb the identified LBP/LCP, a licensed lead abatement removal contractor should stabilize and/or remove the identified LBP/LCP in compliance with the most recent applicable federal, state, and local laws, regulations, standards, and/or codes governing abatement, transport, and disposal of LBP/LCP. All lead waste must be properly characterized prior to disposal to determine waste classification, packaging, transportation, and disposal requirements. While Ninyo & Moore provided an estimate of the quantity of LBP/LCP present at the site structures, it is the abatement contactor’s responsibility to confirm LBP/LCP quantities present. HM3 - Prior to demolition or renovation activities, identified potential mercury- containing thermostats/switches, PCB-containing items (light ballasts, etc.), fluorescent light tubes, and air conditioning units should be removed and properly recycled or disposed of by a licensed contractor according to all applicable federal, state, and local laws/regulations. All light fixtures should be visually inspected, prior to disposal, to determine if they contain PCBs (checked for “No PCBs” or “PCB free” stickers). While Ninyo & Moore provided an estimate of the quantity of miscellaneous hazardous building materials present at the site structures, it is the abatement contractor’s responsibility to confirm the quantities of items present. HM4 - Because non-destructive sampling techniques were employed during the survey, there is a possibility that additional ACMs, LBP/LCP, or other miscellaneous hazardous building materials may be discovered during site building renovations or demolition. Therefore, Ninyo & Moore recommends that, should additional suspect materials not sampled or assessed in the report be uncovered during demolition/renovation activities, (a) samples of suspect materials should be collected or laboratory analysis and activities that may impact the materials should cease until laboratory analytical results are reviewed, or (b) the materials should be assumed to be hazardous and handled as such. TABLE OF CONTENTS Page i 863\101\1955463.5 ARTICLE 1 DEFINITIONS AND EXHIBITS ............................................................................2 Section 1.1 Definitions................................................................................................... 2 Section 1.2 Exhibits ..................................................................................................... 11 ARTICLE 2 LOAN PROVISIONS ............................................................................................11 Section 2.1 Loan. ......................................................................................................... 11 Section 2.2 Interest....................................................................................................... 12 Section 2.3 Use of Loan Funds. ................................................................................... 12 Section 2.4 Security. .................................................................................................... 12 Section 2.5 Subordination. ........................................................................................... 12 Section 2.6 Conditions Precedent to Disbursement of Loan Funds for Construction. ............................................................................................. 13 Section 2.7 Conditions Precedent to Disbursement of Retention. ............................... 16 Section 2.8 Repayment Schedule. ................................................................................ 17 Section 2.9 Reports and Accounting of Residual Receipts.......................................... 18 Section 2.10 Non-Recourse. .......................................................................................... 19 ARTICLE 3 CONSTRUCTION OF THE DEVELOPMENT ...................................................19 Section 3.1 Permits and Approvals. ............................................................................. 19 Section 3.2 Bid Package. ............................................................................................. 20 Section 3.3 Construction Contract. .............................................................................. 20 Section 3.4 Construction Bonds. .................................................................................. 20 Section 3.5 Commencement of Construction. ............................................................. 21 Section 3.6 Completion of Construction. ..................................................................... 21 Section 3.7 Changes; Construction Pursuant to Plans and Laws. ................................ 21 Section 3.8 Prevailing Wages. ..................................................................................... 22 Section 3.9 Accessibility. ............................................................................................. 23 Section 3.10 Equal Opportunity. .................................................................................... 24 Section 3.11 Minority and Women-Owned Contractors. .............................................. 24 Section 3.12 Progress Reports. ...................................................................................... 24 Section 3.13 Construction Responsibilities. .................................................................. 24 Section 3.14 Mechanics Liens, Stop Notices, and Notices of Completion.................... 25 Section 3.15 Inspections. ............................................................................................... 25 Section 3.16 Approved Development Budget; Revisions to Budget. ............................ 25 Section 3.17 Developer Fee. .......................................................................................... 26 Section 3.18 Partnership/Asset Fee................................................................................ 26 Section 3.19 NEPA Mitigation Requirements. .............................................................. 26 ARTICLE 4 LOAN REQUIREMENTS.....................................................................................26 Section 4.1 Match Requirement. .................................................................................. 26 Section 4.2 Reserve Accounts...................................................................................... 26 Section 4.3 Financial Accountings and Post-Completion Audits. ............................... 27 Section 4.4 Approval of Annual Operating Budget. .................................................... 27 Section 4.5 Information. .............................................................................................. 27 Section 4.6 County Audits. .......................................................................................... 28 Section 4.7 Hazardous Materials. ................................................................................ 28 TABLE OF CONTENTS (continued) Page ii 863\101\1955463.5 Section 4.8 Maintenance; Damage and Destruction. ................................................... 30 Section 4.9 Fees and Taxes. ......................................................................................... 31 Section 4.10 Notice of Litigation. .................................................................................. 31 Section 4.11 Operation of Development as Affordable Housing. ................................. 31 Section 4.12 Nondiscrimination..................................................................................... 32 Section 4.13 Transfer. .................................................................................................... 32 Section 4.14 Insurance Requirements. ........................................................................... 33 Section 4.15 Covenants Regarding Approved Financing and Partnership Agreement. ................................................................................................ 34 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER .......................35 Section 5.1 Representations and Warranties. ............................................................... 35 ARTICLE 6 DEFAULT AND REMEDIES ...............................................................................37 Section 6.1 Events of Default. ..................................................................................... 37 Section 6.2 Remedies. .................................................................................................. 39 Section 6.3 Right of Contest. ....................................................................................... 39 Section 6.4 Remedies Cumulative. .............................................................................. 39 Section 6.5 Notice and Cure Rights of Limited Partner. ............................................. 40 ARTICLE 7 GENERAL PROVISIONS ....................................................................................40 Section 7.1 Relationship of Parties. ............................................................................. 40 Section 7.2 No Claims. ................................................................................................ 40 Section 7.3 Amendments. ............................................................................................ 41 Section 7.4 Indemnification. ........................................................................................ 41 Section 7.5 Non-Liability of County Officials, Employees and Agents...................... 41 Section 7.6 No Third Party Beneficiaries. ................................................................... 41 Section 7.7 Discretion Retained By County. ............................................................... 41 Section 7.8 Conflict of Interest. ................................................................................... 41 Section 7.9 Notices, Demands and Communications. ................................................. 42 Section 7.10 Applicable Law. ........................................................................................ 43 Section 7.11 Parties Bound. ........................................................................................... 43 Section 7.12 Attorneys' Fees. ......................................................................................... 43 Section 7.13 Severability. .............................................................................................. 43 Section 7.14 Force Majeure. .......................................................................................... 43 Section 7.15 County Approval. ...................................................................................... 43 Section 7.16 Waivers. .................................................................................................... 44 Section 7.17 Title of Parts and Sections. ....................................................................... 44 Section 7.18 Entire Understanding of the Parties. ......................................................... 44 Section 7.19 Multiple Originals; Counterpart. ............................................................... 44 EXHIBIT A Legal Description of the Property EXHIBIT B Approved Development Budget EXHIBIT C NEPA Mitigation Requirements 863\101\1955463.5 DEVELOPMENT LOAN AGREEMENT Between COUNTY OF CONTRA COSTA And EL CERRITO SENIOR, L.P. Hana Gardens Apartments dated December____, 2016 1 863\101\1957259.4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Contra Costa County Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director No fee for recording pursuant to Government Code Section 27383 __________________________________________________________________________ HOME/CDBG REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS Hana Gardens Apartments (HOME and CDBG Funds) This HOME/CDBG Regulatory Agreement and Declaration of Restrictive Covenants (the "HOME/CDBG Regulatory Agreement") is dated ______________, 2016 and is between the County of Contra Costa, a political subdivision of the State of California (the "County"), and El Cerrito Senior, L.P., a California limited partnership ("Borrower"). RECITALS A. Defined terms used but not defined in these recitals are as defined in Article 1 of this HOME/CDBG Regulatory Agreement. B. The County has received Home Investment Partnerships Act ("HOME") funds from the United States Department of Housing and Urban Development ("HUD") pursuant to the Cranston-Gonzales National Housing Act of 1990 ("HOME Funds"). The HOME Funds must be used by the County in accordance with 24 C.F.R. Part 92. C. The County has received Community Development Block Grant Program ("CDBG") funds from HUD under Title I of the Housing and Community Development Act of 1974 (42 USC 5301, et seq.), as amended ("CDBG Funds"). The CDBG Funds must be used by the County in accordance with 24 C.F.R. Part 570. D. Pursuant to a Disposition, Development, and Loan Agreement dated April 23, 2014 between Eden Housing, Inc., a California nonprofit public benefit corporation and the City of El Cerrito, as amended, which was assigned to Borrower pursuant to an Assignment Agreement dated ____________, 2016, Borrower intends to purchase that certain real property located at 10860 San Pablo Avenue, in the City of El Cerrito, County of Contra Costa, State of California, as more particularly described in Exhibit A (the "Property"). Borrower intends to construct sixty-three (63) senior housing units on the Property for rental to extremely low, very 2 863\101\1957259.4 low and low income households, including one (1) manager's unit (the "Development"). The Development, as well as all landscaping, roads and parking spaces on the Property and any additional improvements on the Property, are the "Improvements". E. Pursuant to a Development Loan Agreement by and between the County and Borrower of even date herewith (the "Loan Agreement"), the County is lending Borrower One Million Four Hundred Seventy-Five Thousand Dollars ($1,475,000) of HOME Funds, and Six Hundred Twenty-Five Thousand Dollars ($625,000) of CDBG Funds, for a total loan amount of Two Million One Hundred Thousand Dollars ($2,100,000) (the "Loan"). F. The County has the authority to lend the Loan to Borrower pursuant to Government Code Section 26227, which authorizes counties to spend county funds for programs that will further a county's public purposes. In addition, the County has the authority to loan (i) the HOME Funds pursuant to 24 C.F.R. 92.205, and (ii) the CBDG Funds pursuant to 24 C.F.R. 570.202. G. The County has agreed to make the Loan on the condition that Borrower maintain and operate the Development in accordance with restrictions set forth in this HOME/CDBG Regulatory Agreement and the County Regulatory Agreement, and in the related documents evidencing the Loan. Seventeen (17) of the Units are restricted by the County pursuant to this HOME/CDBG Regulatory Agreement and the County Regulatory Agreement. H. As it applies to the HOME/CDBG-Assisted Units this HOME/CDBG Regulatory Agreement will be in effect for the HOME Term. The County Regulatory Agreement as it applies to the HOME/CDBG-Assisted Units will be in effect for fifty-five (55) years from the Completion Date which term overlaps with but is longer than the HOME Term. Pursuant to Section 6.15 below, compliance with the terms of this HOME/CDBG Regulatory Agreement will be deemed compliance with the County Regulatory Agreement during the HOME Term. I. In consideration of receipt of the Loan at an interest rate substantially below the market rate, Borrower agrees to observe all the terms and conditions set forth below. The parties therefore agree as follows: AGREEMENT ARTICLE 1 DEFINITIONS 1.1 Definitions. The following terms have the following meanings: (a) "Actual Household Size" means the actual number of persons in the applicable household. 3 863\101\1957259.4 (b) "Adjusted Income" means with respect to the Tenant of each HOME/CDBG-Assisted Unit, the Tenant’s total anticipated annual income as defined in 24 CFR 5.609 and calculated pursuant to 24 CFR 5.611, and as further referenced in 24 CFR 92.203(b)(1). (c) "Assumed Household Size" means the household size "adjusted for family size appropriate to the unit" as such term is defined in Health & Safety Code Section 50052.5(h). (d) "CDBG" has the meaning set forth in Paragraph C of the Recitals. (e) "CDBG Funds" has the meaning set forth in Paragraph C of the Recitals. (f) "City" means the City of El Cerrito, California, a municipal corporation. (g) "Completion Date" means the date a final certificate of occupancy, or equivalent document is issued by the City to certify that the Development may be legally occupied. (h) "County Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants of even date herewith, between the County and Borrower evidencing County requirements applicable to the Loan, to be recorded against the Property concurrently herewith. (i) "Deed of Trust" means the Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing of even date herewith by and among Borrower, as trustor, Old Republic Title Company, as trustee, and the County, as beneficiary, that encumbers the Property to secure repayment of the Loan and Borrower's performance of the Loan Documents. (j) "Development" has the meaning set forth in Paragraph D of the Recitals. (k) "Extremely Low Income Household" means a household with an Adjusted Income that does not exceed thirty percent (30%) of Median Income, adjusted for Actual Household Size. (l) "Extremely Low Income Rent" means the maximum allowable rent for an Extremely Low Income Unit pursuant to Section 2.2(b) below. (m) "Extremely Low Income Units" means the Units which, pursuant to Section 2.1(a) below, are required to be occupied by Extremely Low Income Households. (n) "HOME" has the meaning set forth in Paragraph B of the Recitals. (o) "HOME/CDBG-Assisted Units" means the seventeen (17) Units to be constructed on the Property that are (i) restricted to occupancy by Extremely Low Income Households in compliance with Section 2.1(a) below, and (ii) are "floating" Units as defined in 24 C.F.R. 92.252(j). 4 863\101\1957259.4 (p) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals. (q) "HOME Term" means the term of this HOME/CDBG Regulatory Agreement which commences as of the date of this HOME/CDBG Regulatory Agreement, and unless sooner terminated pursuant to the terms of this HOME/CDBG Regulatory Agreement, expires on the twenty-first (21st) anniversary of the Completion Date; provided, however, if a record of the Completion Date cannot be located or established, the HOME Term will expire on the twenty-third (23rd) anniversary of this HOME/CDBG Regulatory Agreement. (r) "HOME/CDBG Regulatory Agreement" has the meaning set forth in the first paragraph of this HOME/CDBG Regulatory Agreement. (s) "HUD" has the meaning set forth in Paragraph B of the Recitals. (t) "Improvements" has the meaning set forth in Paragraph D of the Recitals. (u) "Intercreditor Agreement" means that certain intercreditor agreement of even date herewith among the City, the County, and Borrower, recorded concurrently herewith. (v) "Loan" has the meaning set forth in Paragraph E of the Recitals. (w) "Loan Agreement" has the meaning set forth in Paragraph E of the Recitals. (x) "Loan Documents" means the documents evidencing the Loan including this HOME/CDBG Regulatory Agreement, the Note, the Loan Agreement, the Intercreditor Agreement, the County Regulatory Agreement, and the Deed of Trust. (y) "Low HOME Rent" means a monthly Rent that does not exceed the maximum rent published by HUD for a Very Low Income Household for the applicable bedroom size as set forth in 24 C.F.R. 92.252(b). (z) "Low Income Household" means a Tenant with an Adjusted Income that does not exceed eighty percent (80%) of Median Income, with adjustments for smaller and larger families, except that HUD may establish income ceilings higher or lower than eighty percent (80%) of Median Income on the basis of HUD findings that such variations are necessary because of prevailing levels of construction costs or fair market rents, or unusually high or low family incomes, as such definition may be amended pursuant to 24 C.F.R. Section 92.2. (aa) "Maintenance Standards" has the meaning set forth in Section 5.6 (a). (bb) "Marketing Plan" has the meaning set forth in Section 4.3(a). (cc) "Median Income" means the median gross yearly income, adjusted for Actual Household Size as specified herein, in the County of Contra Costa, California, as published from time to time by HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the County 5 863\101\1957259.4 shall provide Borrower with other income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD. (dd) "Note" means the promissory note that evidences Borrower's obligation to repay the Loan, as such may be amended form time to time. (ee) "Property" has the meaning set forth in Paragraph D of the Recitals. (ff) "Rent" means the total monthly payments by the Tenant of a Unit for the following: use and occupancy of the Unit and land and associated facilities; any separately charged fees or service charges assessed by Borrower which are customarily charged in rental housing and required of all Tenants (subject to the limitations set forth in 24 C.F.R. 92.214(b)(3)), other than security deposits; an allowance for the cost of an adequate level of service for utilities paid by the Tenant, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service or cable TV; and any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than Borrower, and paid by the Tenant. (gg) "Tenant" means the tenant household that occupies a Unit in the Development. (hh) "Tenant Selection Plan" has the meaning set forth in Section 4.3(b). (ii) "Unit(s)" means one (1) or more of the units in the Development. ARTICLE 2 AFFORDABILITY AND OCCUPANCY COVENANTS 2.1 Occupancy Requirements. (a) Extremely Low Income Units. During the HOME Term Borrower shall cause seventeen (17) Units to be rented to and occupied by or, if vacant, available for occupancy by, Extremely Low Income Households. (b) Intermingling of Units. Borrower shall cause the HOME/CDBG-Assisted Units to be intermingled throughout the Development and of comparable quality to all other Units. All Tenants must have equal access to and enjoyment of all common facilities in the Development. The HOME/CDBG-Assisted Units are all One Bedroom Units. (c) Disabled Persons Occupancy. Borrower shall cause the Development to be constructed and operated at all times in compliance with the provisions of: (i) the Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of 1973 ("Section 504"), (iv) the United States Fair Housing Act, as amended, and (v) the Americans With Disabilities Act of 1990, which relate to disabled persons access. In compliance with Section 504, a minimum of four (4) Units must be constructed to be fully accessible to 6 863\101\1957259.4 households with a mobility impaired member and an additional two (2) Units must be constructed to be fully accessible to hearing and/or visually impaired persons. Borrower shall indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to the County) the County, and its board members, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Borrower's failure to comply with applicable legal requirements related to housing for persons with disabilities. The provisions of this subsection will survive expiration of the HOME Term or other termination of this HOME/CDBG Regulatory Agreement, and remain in full force and effect. (d) Senior Occupancy. Borrower has elected to operate the Development as a senior housing development and as such to require all Units in the Development, except for the resident manager's unit, to be occupied or held available for occupancy by households containing "elderly" or "senior citizen" residents. Borrower shall operate the Development at all times in compliance with the provisions of: (i) the Unruh Act, (ii) the United States Fair Housing Act, as amended, and (iii) the California Fair Employment and Housing Act, which relate to lawful senior housing. Borrower shall develop and implement appropriate age verification procedures to ensure compliance with the requirements of this Section. Borrower shall provide the County with a copy of its written verification procedures. Borrower shall indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the County) the County, and its boardmembers, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Borrower's failure to comply with applicable legal requirements related to housing for seniors. The provisions of this subsection will survive expiration of the HOME Term or other termination of this HOME/CDBG Regulatory Agreement, and remain in full force and effect. (e) HOME/CDBG-Assisted Unit Compliance Deadline. Each HOME/CDBG-Assisted Unit must be rented to and occupied by an Extremely Low Income Household pursuant to Section 2.1(a) on or before the date that occurs eighteen (18) months after the Completion Date. If Borrower fails to comply with this requirement, Borrower shall repay a portion of the HOME funded portion of the Loan, with interest, in accordance with Section 2.8(c) of the Loan Agreement. 2.2 Allowable Rent. (a) Extremely Low Income Rent. Subject to the provisions of Section 2.4 below, the Rent paid by Tenants of Extremely Low Income Units ma y not exceed one-twelfth (1/12) of thirty percent (30%) of thirty percent (30%) of Median Income, adjusted for Assumed Household Size. (b) No Additional Fees. Borrower may not charge any fee, other than Rent, to any Tenant of the HOME/CDBG-Assisted Units for any housing or other services provided by Borrower. 2.3 Rent Increases. (a) Rent Amount. The initial Rent for all HOME/CDBG-Assisted Units must be approved by the County prior to occupancy. The County will provide Borrower with a 7 863\101\1957259.4 schedule of maximum permissible Rents for the HOME/CDBG-Assisted Units and the maximum monthly allowances for utilities and services (excluding telephone) annually. (b) Rent Increases. All Rent increases for all HOME/CDBG-Assisted Units are subject to County approval. No later than sixty (60) days prior to the proposed implementation of any Rent increase affecting a HOME/CDBG-Assisted Unit, Borrower shall submit to the County a schedule of any proposed increase in the Rent charged for HOME/CDBG-Assisted Units. The Rent for such Units may be increased no more than once annually based upon the annual income certification described in Article 3. The County will disapprove a Rent increase if it violates the schedule of maximum permissible Rents for the HOME/CDBG-Assisted Units provided to Borrower by the County, or is greater than a 5% increase over the previous year's Rent. Borrower shall give Tenants written notice at least thirty (30) days prior to any Rent increase, following completion of the County approval process set forth above. 2.4 Increased Income of Tenants. (a) Increased Income above Extremely Low Income but below Low Income Limit. If, upon the annual certification of the income of a Tenant of an Extremely Low Income Unit, Borrower determines that the income of the Tenant has increased above the qualifying limit for an Extremely Low Income Household, but not above the qualifying income for a Low Income Household, the Tenant may continue to occupy the Unit and the Tenant's Rent will remain at the Extremely Low Income Rent. Borrower shall then rent the next available Unit to an Extremely Low Income Household to comply with the requirements of Section 2.1(a) above, at a Rent not exceeding the maximum Rent specified in Section 2.2(a), or re-designate another comparable Unit in the Development with an Extremely Low Income Household an Extremely Low Income Unit, to comply with the requirements of Section 2.1(a) above. Upon renting the next available Unit in accordance with Section 2.1(a) or re-designating another Unit in the Development as an Extremely Low Income Unit, the Unit with the over-income Tenant will no longer be considered a HOME/CDBG-Assisted Unit. (b) Non-Qualifying Household. If, upon the annual certification of the income a Tenant of a HOME/CDBG-Assisted Unit, Borrower determines that the Tenant’s income has increased above the qualifying limit for a Low Income Household, the Tenant may continue to occupy the Unit. Upon the expiration of such Tenant's lease, Borrower shall: (1) With 60 days’ advance written notice, increase such Tenant’s Rent to the lesser of (i) one-twelfth (1/12) of thirty percent (30%) of the actual Adjusted Income of the Tenant, and (ii) the fair market rent (subject to 24 C.F.R. 92.252(i)(2) regarding low income housing tax credit requirements), and (2) Rent the next available Unit to an Extremely Low Income Household to comply with the requirements of Section 2.1 above, at a Rent not exceeding the maximum Rent specified in Section 2.2, or designate another comparable Unit that is occupied by an Extremely Low Income Household, as a HOME/CDBG-Assisted Unit, to meet the requirements of Section 2.1 above. On the day that Borrower complies with Section 2.1 in 8 863\101\1957259.4 accordance with this Section 2.4(b), the Unit with the over-income Tenant will no longer be considered a HOME/CDBG-Assisted Unit. (c) Termination of Occupancy. Upon termination of occupancy of a HOME/CDBG-Assisted Unit by a Tenant, such Unit will be deemed to be continuously occupied by a household of the same income level as the initial income level of the vacating Tenant, until such unit is reoccupied, at which time categorization of the Unit will be established based on the occupancy requirements of Section 2.1. ARTICLE 3 INCOME CERTIFICATION; REPORTING; RECORDS 3.1 Income Certification. Borrower shall obtain, complete, and maintain on file, within sixty (60) days before expected occupancy and annually thereafter, income certifications from each Tenant renting any of the HOME/CDBG-Assisted Units. Borrower shall make a good faith effort to verify the accuracy of the income provided by the applicant or occupying household, as the case may be, in an income certification. To verify the information, Borrower shall take two or more of the following steps: (i) obtain a pay stub for the most recent pay period; (ii) obtain an income tax return for the most recent tax year; (iii) conduct a credit agency or similar search; (iv) obtain an income verification form from the applicant's current employer; (v) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (vi) if the applicant is unemployed and does not have a tax return, obtain another form of independent verification. Where applicable, Borrower shall examine at least two (2) months of relevant source documentation. Copies of Tenant income certifications are to be available to the County upon request. 3.2 Reporting Requirements. (a) Borrower shall submit to the County within one hundred eighty (180) days after the Completion Date, and not later than forty-five (45) days after the close of each calendar year, or such other date as may be requested by the County, a report that includes the following data for each Unit and specifically identifies which Units are HOME/CDBG-Assisted Units: (i) Tenant income, (ii) the number of occupants, (iii) the Rent, (iv) the number of bedrooms, and (v) the initial address of each Tenant. To demonstrate continued compliance with Section 2.1 Borrower shall cause each annual report after the initial report to include a record of any subsequent Tenant substitutions and any vacancies in HOME/CDBG-Assisted Units that have been filled. (b) Borrower shall submit to the County within forty-five (45) days after receipt of a written request, or such other time agreed to by the County, any other information or completed forms requested by the County in order to comply with reporting requirements of HUD, the State of California, and the County. 3.3 Tenant Records. Borrower shall maintain complete, accurate and current records pertaining to income and household size of Tenants. All Tenant lists, applications and waiting lists relating to the Development are to be at all times: (i) separate and identifiable from any 9 863\101\1957259.4 other business of Borrower, (ii) maintained as required by the County, in a reasonable condition for proper audit, and (iii) subject to examination during business hours by representatives of the County. Borrower shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least five (5) years. The County may examine and make copies of all books, records or other documents of Borrower that pertain to the Development. 3.4 Development Records. (a) Borrower shall keep and maintain at the principal place of business of the Borrower set forth in Section 6.11 below, or elsewhere with the County's written consent, full, complete and appropriate books, records and accounts relating to the Development. Borrower shall cause all books, records and accounts relating to its compliance with the terms, provisions, covenants and conditions of the Loan Documents to be kept and maintained in accordance with generally accepted accounting principles consistently applied, and to be consistent with requirements of this HOME/CDBG Regulatory Agreement. Borrower shall cause all books, records, and accounts to be open to and available for inspection and copying by HUD, the County, its auditors or other authorized representatives at reasonable intervals during normal business hours. Borrower shall cause copies of all tax returns and other reports that Borrower may be required to furnish to any government agency to be open for inspection by the County at all reasonable times at the place that the books, records and accounts of Borrower are kept. Borrower shall preserve such records for a period of not less than five (5) years after their creation in compliance with all HUD records and accounting requirements. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Loan is pending at the end of the record retention period stated herein, then Borrower shall retain the records until such action and all related issues are resolved. Borrower shall cause the records to include all invoices, receipts, and other documents related to expenditures from the Loan funds. Borrower shall cause records to be accurate and current and in a form that allows the County to comply with the record keeping requirements contained in 24 C.F.R. 92.508 and 24 C.F.R. 570.506. Such records are to include but are not limited to: (i) Records providing a full description of the activities undertaken with the use of the Loan funds; (ii) Records demonstrating the eligibility of activities under the CDBG regulations set forth in 24 C.F.R. 570 et seq., and that use of the CDBG Funds meets one of the national objectives of the CDBG program set forth in 24 C.F.R. Section 570.208; (iii) Records demonstrating compliance with the HUD property standards and lead-based paint requirements and the maintenance requirements set forth in Section 5.6 (which implements 24 C.F.R. 92.251); (iv) Records documenting compliance with the fair housing, equal opportunity, and affirmative fair marketing requirements; (v) Financial records as required by 24 C.F.R. 570.502, 24 C.F.R. 92.505, and 2 C.F.R. Part 200; 10 863\101\1957259.4 (vi) Records demonstrating compliance with the HOME and CDBG marketing, tenant selection, affordability, and income requirements; (vii) Records demonstrating compliance with MBE/WBE requirements; (viii) Records demonstrating compliance with 24 C.F.R. Part 135 which implements Section 3 of the Housing Development Act of 1968; (ix) Records demonstrating compliance with applicable relocation requirements, which must be retained for at least five (5) years after the date by which persons displaced from the property have received final payments; (x) Records demonstrating compliance with labor requirements including certified payrolls from Borrower's general contractor evidencing that applicable prevailing wages have been paid; and (xi) Records demonstrating Borrower's compliance with the Community Housing Development Organization (CHDO) requirements. (b) The County shall notify Borrower of any records it deems insufficient. Borrower has fifteen (15) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the County in such notice, or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Borrower must be gin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible. ARTICLE 4 OPERATION OF THE DEVELOPMENT 4.1 Residential Use. Borrower shall operate the Development for residential use only. No part of the Development may be operated as transient housing. 4.2 Compliance with Loan Documents and Program Requirements. Borrower's actions with respect to the Property shall at all times be in full conformity with: (i) all requirements of the Loan Documents; (ii) all requirements imposed on projects assisted with HOME Funds as contained in 42 U.S.C. Section 12701, et seq., 24 C.F.R. Part 92, and other implementing rules and regulations; (iii) all requirements imposed on projects assisted with CDBG Funds as contained in 42 U.S.C. 5301, et seq., 24 C.F.R. Part 570, and other implementing rules and regulations; and (iv) any other regulatory requirements imposed on the Development. 4.3 Marketing Plan; Tenant Selection Plan. (a) Marketing Plan. 11 863\101\1957259.4 (1) No later than six (6) months prior to the date construction of the Development is projected to be complete, Borrower shall submit to the County for approval its plan for marketing the Development to income-eligible households as required by this HOME/CDBG Regulatory Agreement (the "Marketing Plan"). The Marketing Plan must include information on affirmative marketing efforts and compliance with fair housing laws and 24 C.F.R. 92.351(a). (2) Upon receipt of the Marketing Plan, the County will promptly review the Marketing Plan and will approve or disapprove it within fifteen (15) days after receipt. If the Marketing Plan is not approved, the County will give Borrower specific reasons for such disapproval and Borrower shall submit a revised Marketing Plan within fifteen (15) days of notification of the County's disapproval. Borrower shall follow this procedure for resubmission of a revised Marketing Plan until the Marking Plan is approved by the County. If the Borrower does not submit a revised Marketing Plan that is approved by the County at least three (3) months prior to the date completion of the Development is projected to be complete, Borrower will be in default of this HOME/CDBG Regulatory Agreement. (3) If any HOME/CDBG-Assisted Units have not been rented in accordance with Section 2.1(b) above on or before the date that is five (5) months after the Completion Date Borrower shall submit to the County a detailed report of ongoing marketing efforts, and if deemed appropriate by the County, any necessary amendments or updates to the Marketing Plan to cause the vacant HOME/CDBG-Assisted Units to be rented in compliance with Section 2.1(b). (4) If any HOME/CDBG-Assisted Units have not been rented to in accordance with Section 2.1(b) above on or before the date that is twelve (12) months after the Completion Date Borrower shall submit to the County a detailed report of ongoing marketing efforts, and if deemed appropriate by the County, any necessary amendments or updates to the Marketing Plan to cause the vacant HOME/CDBG-Assisted Units to be rented in compliance with Section 2.1(b). (b) Tenant Selection Plan. (1) No later than six (6) months prior to the date construction of the Development is projected to be complete, Borrower shall submit to the County, for its review and approval, Borrower's written tenant selection plan (the "Tenant Selection Plan"). Borrower's Tenant Selection Plan must, at a minimum, meet the requirements for tenant selection set out in 24 C.F.R. 92.253(d), and any modifications thereto. (2) Upon receipt of the Tenant Selection Plan, the County will promptly review the Tenant Selection Plan and will approve or disapprove it within fifteen (15) days after receipt. If the Tenant Selection Plan is not approved, the County will give Borrower specific reasons for such disapproval and Borrower shall submit a revised Tenant Selection Plan within fifteen (15) days of notification of the County's disapproval. Borrower shall follow this procedure for resubmission of a revised Tenant Selection Plan until the Tenant Selection Plan is approved by the County. If the Borrower does not submit a revised Tenant Selection Plan that is approved by the County at least three (3) months prior to the date construction of the 12 863\101\1957259.4 Development is projected to be complete, Borrower will be in default of this HOME/CDBG Regulatory Agreement. 4.4 Lease Provisions. (a) No later than four (4) months prior to the date construction of the Development is projected to be complete, Borrower shall submit to the County for approval Borrower’s proposed form of lease agreement for the County's review and approval. When leasing Units within the Development, Borrower shall use the form of lease approved by the County. Borrower may not permit the lease to contain any provision that is prohibited by 24 C.F.R. Section 92.253(b) and any amendments thereto. Borrower’s form of lease must include any provisions necessary to comply with the requirements of the Violence Against Women Reauthorization Act of 2013 (Pub. L. 113–4, 127 Stat. 54) applicable to HUD-funded programs. The form of lease must comply with all requirements of this HOME/CDBG Regulatory Agreement, the other Loan Documents and must, among other matters: (1) provide for termination of the lease for failure to: (i) provide any information required under this HOME/CDBG Regulatory Agreement or reasonably requested by Borrower to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Development in accordance with the standards set forth in this HOME/CDBG Regulatory Agreement, or (ii) qualify as an Extremely Low Income Household as a result of any material misrepresentation made by such Tenant with respect to the income computation. (2) be for an initial term of not less than one (1) year, unless by mutual agreement between the Tenant and Borrower, and provide for no increase in Rent during such year. After the initial year of tenancy, the lease may be month-to-month by mutual agreement of Borrower and the Tenant. Notwithstanding the above, any rent increases are subject to the requirements of Section 2.3 above. (3) include a provision that requires a Tenant who is residing in a Unit required to be accessible pursuant to Section 2.1(c) and who is not in need of an accessible Unit to move to a non-accessible Unit when a non-accessible Unit becomes available and another Tenant or prospective Tenant is in need of an accessible Unit. (b) During the HOME Term, Borrower shall comply with the Marking Plan and Tenant Selection Plan approved by the County. 4.5 Lease Termination. Any termination of a lease or refusal to renew a lease for a HOME/CDBG-Assisted Unit within the Development must be in conformance with 24 C.F.R. 92.253(c) and the requirements of the Violence Against Women Reauthorization Act of 2013 ((Pub. L. 113–4, 127 Stat. 54) applicable to HUD-funded programs, and must be preceded by not less than sixty (60) days written notice to the Tenant by Borrower specifying the grounds for the action. 13 863\101\1957259.4 4.6 HOME and CDBG Requirements. (a) Borrower shall comply with all applicable laws and regulations governing the use of the HOME Funds as set forth in 24 C.F.R. Part 92 and use of the CDBG Funds as set forth in 24 C.F.R. Part 570. In the event of any conflict between this HOME/CDBG Regulatory Agreement and applicable laws and regulations governing the use of the Loan funds, the applicable laws and regulations govern. (b) The laws and regulations governing the use of the Loan funds include (but are not limited to) the following: (i) Environmental and Historic Preservation. 24 C.F.R. Part 58, which prescribes procedures for compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4361), and the additional laws and authorities listed at 24 C.F.R. 58.5; (ii) Applicability of Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. The applicable policies, guidelines, and requirements of 2 C.F.R. Part 200; (iii) Debarred, Suspended or Ineligible Contractors. The prohibition on the use of debarred, suspended, or ineligible contractors set forth in 24 C.F.R. Part 24; (iv) Civil Rights, Housing and Community Development, and Age Discrimination Acts. The Fair Housing Act (42 U.S.C. 3601 et seq.) and implementing regulations at 24 C.F.R. Part 100; Title VI of the Civil Rights Act of 1964 as amended; Title VIII of the Civil Rights Act of 1968 as amended; Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended; Section 504 of the Rehabilitation Act of 1973 (29 USC 794, et seq.); the Age Discrimination Act of 1975 (42 USC 6101, et seq.); Executive Order 11063 as amended by Executive Order 12259 and implementing regulations at 24 C.F.R. Part 107; Executive Order 11246 as amended by Executive Orders 11375, 12086, 11478, 12107; Executive Order 11625 as amended by Executive Order 12007; Executive Order 12432; Executive Order 12138 as amended by Executive Order 12608; (v) Lead-Based Paint. The requirement of the Lead-Based Paint Poisoning Prevention Act, as amended (42 U.S.C. 4821 et seq.), the Residential Lead-Based Paint Hazard Reduction Act (42 U.S.C. 4851 et seq.), and implementing regulations at 24 C.F.R. Part 35; (vi) Relocation. The requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601, et seq.), and implementing regulations at 49 C.F.R. Part 24; Section 104(d) of the Housing and Community Development Act of 1974 and implementing regulations at 24 C.F.R. 42 et seq.; 24 C.F.R. 92.353; 24 C.F.R. 570.606; and California Government Code Section 7260 et seq. and implementing regulations at 25 California Code of Regulations Sections 6000 et seq. If and to the extent that development of the Development results in the permanent or temporary displacement of residential tenants, homeowners, or businesses, then Borrower shall comply with all applicable local, state, and federal statutes and regulations with respect to relocation 14 863\101\1957259.4 planning, advisory assistance, and payment of monetary benefits. Borrower shall prepare and submit a relocation plan to the County for approval. Borrower is solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws. Borrower shall indemnify, defend (with counsel reasonably chosen by the County), and hold harmless the County against all claims that arise out of relocation obligations to residential tenants, homeowners, or businesses permanently or temporarily displaced by the Development; (vii) Discrimination against the Disabled. The requirements of the Fair Housing Act (42 U.S.C. 3601 et seq.) and implementing regulations at 24 C.F.R. Part 100; Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and federal regulations issued pursuant thereto, which prohibit discrimination against the disabled in any federally assisted program, the requirements of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157) and the applicable requirements of Title II and/or Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et seq.), and federal regulations issued pursuant thereto; (viii) Clean Air and Water Acts. The Clean Air Act, as amended, 42 U.S.C. 7401 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq., and the regulations of the Environmental Protection Agency with respect thereto, at 40 C.F.R. Part 1500, as amended from time to time; (ix) Uniform Administrative Requirements. The provisions of 24 C.F.R. 92.505 and 24 C.F.R. 570.502 regarding cost and auditing requirements; (x) Training Opportunities. The requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u ("Section 3"), requiring that to the greatest extent feasible opportunities for training and employment be given to lower income residents of the project area and agreements for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in, the areas of the project. Borrower agrees to include the following langu age in all subcontracts executed under this HOME/CDBG Regulatory Agreement: (1) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (2) The parties to this contract agree to comply with HUD's regulations in 24 C.F.R. Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (3) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or 15 863\101\1957259.4 other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause; and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference; shall set forth minimum number and job titles subject to hire; availability of apprenticeship and training positions; the qualifications for each; the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (4) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 C.F.R. Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R. Part 135. (5) The contractor will certify that any vacant employment positions, including training positions, that are filled (A) after the contractor is selected but before the contract is executed, and (B) with persons other than those to whom the regulations of 24 C.F.R. Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 C.F.R. Part 135. (6) Noncompliance with HUD's regulations in 24 C.F.R. Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. (7) With respect to work performed in connection with Section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b). (xi) Labor Standards. The labor requirements set forth in 24 C.F.R. 92.354 and 24 C.F.R. Section 570.603; the prevailing wage requirements of the Davis-Bacon Act and implementing rules and regulations (40 U.S.C. 3141-3148); the Copeland "Anti- Kickback" Act (40 U.S.C. 276(c)) which requires that workers be paid at least once a week without any deductions or rebates except permissible deductions; the Contract Work Hours and Safety Standards Act – CWHSSA (40 U.S.C. 3701-3708) which requires that workers receive "overtime" compensation at a rate of 1-1/2 times their regular hourly wage after they have worked forty (40) hours in one (1) week; and Title 29, Code of Federal Regulations, Subtitle A, Parts 1, 3 and 5 are the regulations and procedures issued by the Secretary of Labor for the administration and enforcement of the Davis-Bacon Act, as amended; 16 863\101\1957259.4 (xii) Drug Free Workplace. The requirements of the Drug Free Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 C.F.R. Part 24; (xiii) Anti-Lobbying; Disclosure Requirements. The disclosure requirements and prohibitions of 31 U.S.C. 1352 and implementing regulations at 24 C.F.R. Part 87; (xiv) Historic Preservation. The historic preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. Section 470) and the procedures set forth in 36 C.F.R. Part 800. If archeological, cultural, or historic period resources are discovered during construction, all construction work must come to a halt and Borrower shall immediately notify the County. Borrower shall not shall alter or move the discovered material(s) until all appropriate procedures for "post-review discoveries" set forth in Section 106 of the National Historic Preservation Act have taken place, which include, but are not limited to, consultation with the California State Historic Preservation Officer and evaluation of the discovered material(s) by a qualified professional archeologist; (xv) Flood Disaster Protection. The requirements of the Flood Disaster Protection Act of 1973 (P.L. 93-234) (the "Flood Act"). No portion of the assistance provided under this Agreement is approved for acquisition or construction purposes as defined under Section 3(a) of the Flood Act, for use in an area identified by HUD as having special flood hazards which is not then in compliance with the requirements for participation in the national flood insurance program pursuant to Section 201(d) of the Flood Act. The use of any assistance provided under this Agreement for such acquisition or construction in such identified areas in communities then participating in the National Flood Insurance Program is subject to the mandatory purchase of flood insurance requirements of Section 102(a) of the Flood Act. If the Property is located in an area identified by HUD as having special flood hazards and in which the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4001 et seq., the property owner and its successors or assigns must obtain and maintain, during the ownership of the Property, such flood insurance as required with respect to financial assistance for acquisition or construction purposes under -Section 102(s) of the Flood Act. Such provisions are required notwithstanding the fact that the construction on the Property is not itself funded with assistance provided under this Agreement; (xvi) Religious Organizations. If the Borrower is a religious organization, as defined by the CDBG and/or HOME requirements, the Borrower shall comply with all conditions prescribed by HUD for the use of HOME Funds and CDBG Funds by religious organizations, including the First Amendment of the United States Constitution regarding church/state principles and the applicable constitutional prohibitions set forth in 24 C.F.R. 92.257 and 24 C.F.R. 570.200(j); (xvii) Violence Against Women. The requirements of the Violence Against Women Reauthorization Act of 2013 (Pub. L. 113–4, 127 Stat. 54) applicable to HUD- funded programs; 17 863\101\1957259.4 (xviii) Conflict of Interest. The conflict of interest provisions set forth in 24 C.F.R. 92.356 and 24 C.F.R. 570.611; and (xix) HUD Regulations. Any other HUD regulations present or as may be amended, added, or waived in the future pertaining to the Loan funds. ARTICLE 5 PROPERTY MANAGEMENT AND MAINTENANCE 5.1 Management Responsibilities. Borrower is responsible for all management functions with respect to the Development, including without limitation the selection of Tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The County has no responsibility for management of the Development. Borrower shall retain a professional property management company approved by the County in its reasonable discretion to perform Borrower's management duties hereunder. An on-site property manager is also required. 5.2 Management Agent. Borrower shall cause the Development to be managed by an experienced management agent reasonably acceptable to the County, with a demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing (the "Management Agent"). The County has approved Eden Housing Management, Inc. as the Management Agent. Borrower shall submit for the County's approval the identity of any proposed subsequent management agent. Borrower shall also submit such additional information about the background, experience and financial condition of any proposed management agent as is reasonably necessary for the County to determine whether the proposed management agent meets the standard for a qualified management agent set forth above. If the proposed management agent meets the standard for a qualified management agent set forth above, the County shall approve the proposed management agent by notifying Borrower in writing. Unless the proposed management agent is disapproved by the County within thirty (30) days, which disapproval is to state with reasonable specificity the basis for disapproval, it shall be deemed approved. 5.3 Periodic Performance Review. The County reserves the right to conduct an annual (or more frequently, if deemed necessary by the County) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable the County to determine if the Development is being operated and managed in accordance with the requirements and standards of this HOME/CDBG Regulatory Agreement. Borrower shall cooperate with the County in such reviews. 5.4 Replacement of Management Agent. If, as a result of a periodic review, the County determines in its reasonable judgment that the Development is not being operated and managed in accordance with any of the material requirements and standards of this HOME/CDBG Regulatory Agreement, the County shall deliver notice to Borrower of its intention to cause replacement of the Management Agent, including the reasons therefor. Within fifteen (15) days after receipt by Borrower of such written notice, the County staff and Borrower 18 863\101\1957259.4 shall meet in good faith to consider methods for improving the financial and operating status of the Development, including, without limitation, replacement of the Management Agent. If, after such meeting, County staff recommends in writing the replacement of the Management Agent, Borrower shall promptly dismiss the then-current Management Agent, and shall appoint as the Management Agent a person or entity meeting the standards for a management agent set forth in Section 5.2 above and approved by the County pursuant to Section 5.2 above. Any contract for the operation or management of the Development entered into by Borrower shall provide that the Management Agent may be dismissed and the contract terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section constitutes a default under this HOME/CDBG Regulatory Agreement, and the County may enforce this provision through legal proceedings as specified in Section 6.4 below. 5.5 Approval of Management Policies. Borrower shall submit its written management policies with respect to the Development to the County for its review, and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this HOME/CDBG Regulatory Agreement. 5.6 Property Maintenance. (a) Borrower shall maintain, for the entire HOME Term of this HOME/CDBG Regulatory Agreement, all interior and exterior Improvements, including landscaping in decent, safe and sanitary condition, and in good condition and repair, in accordance with (i) 24 C.F.R. Section 92.251, and (ii) the maintenance standards provided by the County (the "Maintenance Standards"). The Maintenance Standards, which set forth inspectable items and areas, and this HOME/CDBG Regulatory Agreement, implement 24 C.F.R. Section 92.251. Borrower shall cause the Development to be: (i) maintained in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials, including but not limited to the lead-based paint requirements in 24 C.F.R. part 35; and (ii) free of all health and safety defects. Borrower shall correct any life-threatening maintenance deficiencies, including those set forth in the Maintenance Standards immediately upon notification. (b) At the beginning of each year of the HOME Term, Borrower shall certify to the County that the Development is in compliance with the Maintenance Standards. 5.7 Property Inspections. (a) On-Site Physical Inspections. The County will perform on-site inspections of the Development during the HOME Term to ensure compliance with the Maintenance Standards. The County will perform an on-site inspection within twelve months after completion of construction of the Development and at least once every three (3) years during the 19 863\101\1957259.4 HOME Term. If the Development is found to have health and safety violations, the County may perform more frequent inspections. Borrower shall cooperate in such inspections. (b) Violation of Maintenance Standards. If after an inspection, the County determines that Borrower is in violation of the Maintenance Standards, the County will provide Borrower a written report of the violations. Borrower shall correct the violations set forth in the report provided to Borrower by County. The County will perform a follow-up inspection to verify that the violations have been corrected. If such violations continue for a period of ten (10) days after delivery of the report to Borrower by the County with respect to graffiti, debris, waste material, and general maintenance, or thirty (30) days after delivery of the report to Borrower by the County with respect to landscaping and building improvements, then the County, in addition to whatever other remedy it may have at law or in equity, has the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the violation. Pursuant to such right of entry, the County is permitted (but is not required) to enter upon the Property and to perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the County and/or costs of such cure, which amount Borrower shall promptly pay to the County upon demand. ARTICLE 6 MISCELLANEOUS 6.1 Nondiscrimination. (a) All of the Units must be available for occupancy on a continuous basis to members of the general public who are income eligible. Borrower may not give preference to any particular class or group of persons in renting or selling the Units, except to the extent that the Units are required to be leased to income eligible households pursuant to this HOME/CDBG Regulatory Agreement. Borrower herein covenants by and for Borrower, assigns, and all persons claiming under or through Borrower, that there exist no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, source of income (e.g., SSI), ancestry, age, familial status (except for lawful senior housing in accordance with state and federal law), or disability, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any unit nor will Borrower or any person claiming under or through Borrower, 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 of any unit or in connection with the employment of persons for the construction, operation and management of any unit. (b) Borrower shall accept as Tenants, on the same basis as all other prospective Tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor. Borrower may not apply selection criteria to Section 8 certificate or voucher holders 20 863\101\1957259.4 that is more burdensome than criteria applied to all other prospective Tenants, nor will Borrower apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective Tenants. 6.2 Application of Provisions. The provisions of this HOME/CDBG Regulatory Agreement apply to the Property for the entire HOME Term even if the Loan is paid in full prior to the end of the HOME Term. This HOME/CDBG Regulatory Agreement binds any successor, heir or assign of Borrower, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the County. The County is making the Loan on the condition, and in consideration of, this provision, and would not do so otherwise. 6.3 Covenants to Run With the Land. The County and Borrower hereby declare their express intent that the covenants and restrictions set forth in this HOME/CDBG Regulatory Agreement run with the land, and bind all successors in title to the Property, provided, however, that on the expiration of the HOME Term said covenants and restrictions expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof, is to be held conclusively to have been executed, delivered and accepted subject to the covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the County expressly releases such conveyed portion of the Property from the requirements of this HOME/CDBG Regulatory Agreement. 6.4 Enforcement by the County. If Borrower fails to perform any obligation under this HOME/CDBG Regulatory Agreement, and fails to cure the default within thirty (30) days after the County has notified Borrower in writing of the default or, if the default cannot be cured within thirty (30) days, fails to commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure within sixty (60) days, the County may enforce this HOME/CDBG Regulatory Agreement by any or all of the following actions, or any other remedy provided by law: (a) Calling the Loan. The County may declare a default under the Note, accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed of Trust. (b) Action to Compel Performance or for Damages. The County may bring an action at law or in equity to compel Borrower's performance of its obligations under this HOME/CDBG Regulatory Agreement, and may seek damages. (c) Remedies Provided Under Loan Documents. The County may exercise any other remedy provided under the Loan Documents. The County shall provide notice of a default to Borrower's limited partner in the manner set forth in Section 6.5 of the Loan Agreement. 6.5 Anti-Lobbying Certification. 21 863\101\1957259.4 (a) Borrower certifies, to the best of Borrower's knowledge or belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement; (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying, in accordance with its instructions. (b) This certification is a material representation of fact upon which reliance was placed when the Loan Documents were made or entered into. Submission of this certification is a prerequisite for making or entering into the Loan Documents imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than Ten Thousand Dollars ($10,000) and no more than One Hundred Thousand Dollars ($100,000) for such failure. 6.6 Attorneys' Fees and Costs. In any action brought to enforce this HOME/CDBG Regulatory Agreement, the prevailing party must be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This section must be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute. 6.7 Recording and Filing. The County and Borrower shall cause this HOME/CDBG Regulatory Agreement, and all amendments and supplements to it, to be recorded in the Official Records of the County of Contra Costa. 6.8 Governing Law. This HOME/CDBG Regulatory Agreement is governed by the laws of the State of California. 6.9 Waiver of Requirements. Any of the requirements of this HOME/CDBG Regulatory Agreement may be expressly waived by the County in writing, but no waiver by the County of any requirement of this HOME/CDBG Regulatory Agreement extends to or affects any other provision of this HOME/CDBG Regulatory Agreement, and may not be deemed to do so. 6.10 Amendments. This HOME/CDBG Regulatory Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title that is duly recorded in the official records of the County of Contra Costa. 22 863\101\1957259.4 6.11 Notices. Any notice requirement set forth herein will be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, addressed to the appropriate party as follows: County: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director Borrower: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541 Attention: President Investor Limited Partner: Wells Fargo Affordable Housing Community Development Corporation MAC D1053-170 301 S. College Street, 17th Floor Charlotte, NC 28288-0173 Attn: Director of Tax Credit Asset Management with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Dave Dahl, Esq. Such addresses may be changed by notice to the other party given in the same manner as provided above. 6.12 Severability. If any provision of this HOME/CDBG Regulatory Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this HOME/CDBG Regulatory Agreement will not in any way be affected or impaired thereby. 6.13 Multiple Originals; Counterparts. This HOME/CDBG Regulatory Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 6.14 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the Property, this HOME/CDBG Regulatory Agreement will revive according to its original terms if, 23 863\101\1957259.4 during the HOME Term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former owner or those with whom the former owner has or had family or business ties, obtains an ownership interest in the Development or Property. 6.15 County Regulatory Agreement. The County and Borrower are entering into this HOME/CDBG Regulatory Agreement concurrently with the County Regulatory Agreement. The County Regulatory Agreement as it applies to the HOME/CDBG-Assisted Units will be in effect for fifty-five (55) years from the Completion Date which term overlaps with but is longer than the HOME Term. Compliance with the terms of this HOME/CDBG Regulatory Agreement will be deemed compliance with the County Regulatory Agreement during the HOME Term. In the event of a conflict between this HOME/CDBG Regulatory Agreement and the County Regulatory Agreement during the HOME Term, the terms of this HOME/CDBG Regulatory Agreement will prevail. [remainder of page intentionally left blank] 24 Signature page County Regulatory Agreement 863\101\1957259.4 WHEREAS, this HOME/CDBG Regulatory Agreement has been entered into by the undersigned as of the date first written above. COUNTY: COUNTY OF CONTRA COSTA, a political subdivision of the State of California By: __________________ John Kopchik Director, Department of Conservation and Development Approved as to form: SHARON L. ANDERSON County Counsel By: Kathleen Andrus Deputy County Counsel BORROWER: El Cerrito Senior, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its general partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its manager By:_______________________ Its:_______________________ 863\101\1957259.4 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 863\101\1957259.4 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. A-1 863\101\1957259.4 EXHIBIT A Legal Description The land is situated in the State of California, County of Contra Costa, and is described as follows: 1 863\101\1957241.4 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Contra Costa County Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director No fee for recording pursuant to Government Code Section 27383 __________________________________________________________________________ COUNTY REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS Hana Gardens Apartments (HOME and CDBG Funds) This County Regulatory Agreement and Declaration of Restrictive Covenants (the "County Regulatory Agreement") is dated __________, 2016 and is between the County of Contra Costa, a political subdivision of the State of California (the "County"), and El Cerrito Senior, L.P., a California limited partnership ("Borrower"). RECITALS A. Defined terms used but not defined in these recitals are as defined in Article 1 of this County Regulatory Agreement. B. The County has received Home Investment Partnerships Act ("HOME") funds from the United States Department of Housing and Urban Development ("HUD") pursuant to the Cranston-Gonzales National Housing Act of 1990 ("HOME Funds"). The HOME Funds must be used by the County in accordance with 24 C.F.R. Part 92. C. The County has received Community Development Block Grant Program ("CDBG") funds from HUD under Title I of the Housing and Community Development Act of 1974 (42 USC 5301, et seq.), as amended ("CDBG Funds"). The CDBG Funds must be used by the County in accordance with 24 C.F.R. Part 570. D. Pursuant to a Disposition, Development, and Loan Agreement dated April 23, 2014 between Eden Housing, Inc., a California nonprofit public benefit corporation and the City of El Cerrito, as amended, which was assigned to Borrower pursuant to an Assignment Agreement dated _______________, 2016, Borrower intends to purchase that certain real property located at 10860 San Pablo Avenue, in the City of El Cerrito, County of Contra Costa, State of California, as more particularly described in Exhibit A (the "Property"). Borrower intends to construct sixty-three (63) senior housing units on the Property for rental to extremely 2 863\101\1957241.4 low, very low and low income households, including one (1) manager's unit (the "Development"). The Development, as well as all landscaping, roads and parking spaces on the Property and any additional improvements on the Property, are the "Improvements". E. Pursuant to a Development Loan Agreement by and between the County and Borrower of even date herewith (the "Loan Agreement"), the County is lending Borrower One Million Four Hundred Seventy-Five Thousand Dollars ($1,475,000) of HOME Funds, and Six Hundred Twenty-Five Thousand Dollars ($625,000) of CDBG Funds, for a total loan amount of Two Million One Hundred Thousand Dollars ($2,100,000) (the "Loan"). F. The County has the authority to lend the Loan to Borrower pursuant to Government Code Section 26227, which authorizes counties to spend county funds for programs that will further a county's public purposes. In addition, the County has the authority to loan (i) the HOME Funds pursuant to 24 C.F.R. 92.205, and (ii) the CBDG Funds pursuant to 24 C.F.R. 570.202. G. The County has agreed to make the Loan on the condition that Borrower maintain and operate the Development in accordance with restrictions set forth in this County Regulatory Agreement and the HOME/CDBG Regulatory Agreement, and in the related documents evidencing the Loan. Seventeen (17) of the Units are restricted by the County pursuant to the HOME/CDBG Regulatory Agreement and this County Regulatory Agreement. H. As it applies to the County-Assisted Units this County Regulatory Agreement will be in effect for the Term. The HOME/CDBG Regulatory Agreement as it applies to the County- Assisted Units will be in effect for twenty-one (21) years from the Completion Date. Pursuant to Section 6.14 below, compliance with the terms of the HOME/CDBG Regulatory Agreement will be deemed compliance with this County Regulatory Agreement during the term of the HOME/CDBG Regulatory Agreement. I. In consideration of receipt of the Loan at an interest rate substantially below the market rate, Borrower agrees to observe all the terms and conditions set forth below. The parties therefore agree as follows: AGREEMENT ARTICLE 1 DEFINITIONS 1.1 Definitions. The following terms have the following meanings: (a) "Actual Household Size" means the actual number of persons in the applicable household. (b) "Adjusted Income" means the total anticipated annual income of all 3 863\101\1957241.4 persons in the Tenant household as defined in 24 CFR 5.609 and as calculated pursuant to 24 C.F.R. 5.611. (c) "Assumed Household Size" means the household size "adjusted for family size appropriate to the unit" as such term is defined in Health & Safety Code Section 50052.5(h). (d) "CDBG" has the meaning set forth in Paragraph C of the Recitals. (e) "CDBG Funds" has the meaning set forth in Paragraph C of the Recitals. (f) "City" means the City of El Cerrito, California, a municipal corporation. (g) "Completion Date" means the date a final certificate of occupancy, or equivalent document is issued by the City to certify that the Development may be legally occupied. (h) "County-Assisted Units" means the seventeen (17) Extremely Low Income Units. (i) "County Regulatory Agreement" has the meaning set forth in the first paragraph of this County Regulatory Agreement. (j) "Deed of Trust" means the Deed of Trust with Assignment of Rents, Security Agreement and Fixture Filing of even date herewith by and among Borrower, as trustor, Old Republic Title Company, as trustee, and the County, as beneficiary, that encumbers the Property to secure repayment of the Loan and Borrower's performance of the Loan Documents. (k) "Development" has the meaning set forth in Paragraph D of the Recitals. (l) "Extremely Low Income Household" means a household with an Adjusted Income that does not exceed thirty percent (30%) of Median Income, adjusted for Actual Household Size. (m) "Extremely Low Income Rent" means the maximum allowable rent for an Extremely Low Income Unit pursuant to Section 2.2(a) below. (n) "Extremely Low Income Units" means the Units which, pursuant to Section 2.1(a) below, are required to be occupied by Extremely Low Income Households. (o) "HOME" has the meaning set forth in Paragraph B of the Recitals. (p) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals. (q) "HOME/CDBG Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants of even date herewith, between the County and Borrower evidencing County requirements applicable to the Loan, to be recorded against the 4 863\101\1957241.4 Property concurrentl y herewith. (r) "HUD" has the meaning set forth in Paragraph B of the Recitals. (s) "Improvements" has the meaning set forth in Paragraph D of the Recitals. (t) "Intercreditor Agreement" means that certain intercreditor agreement of even date herewith among the City, the County, and Borrower, recorded concurrently herewith. (u) "Loan" has the meaning set forth in Paragraph E of the Recitals. (v) "Loan Agreement" has the meaning set forth in Paragraph E of the Recitals. (w) "Loan Documents" means the documents evidencing the Loan including this County Regulatory Agreement, the Note, the Loan Agreement, the Intercreditor Agreement, the HOME/CDBG Regulatory Agreement, and the Deed of Trust. (x) "Low Income Household" means a Tenant with an Adjusted Income that does not exceed eighty percent (80%) of Median Income, with adjustments for smaller and larger families, except that HUD may establish income ceilings higher or lower than eighty percent (80%) of Median Income on the basis of HUD findings that such variations are necessary because of prevailing levels of construction costs or fair market rents, or unusually high or low family incomes. (y) "Maintenance Standards" has the meaning set forth in Section 5.6 (a). (z) "Marketing Plan" has the meaning set forth in Section 4.3(a). (aa) "Median Income" means the median gross yearly income, adjusted for Actual Household Size as specified herein, in the County of Contra Costa, California, as published from time to time by HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the County shall provide Borrower with other income determinations that are reasonably similar with respect to methods of calculation to those previously published by HUD. (bb) "Note" means the promissory note that evidences Borrower's obligation to repay the Loan, as such may be amended form time to time. (cc) "Property" has the meaning set forth in Paragraph D of the Recitals. (dd) "Rent" means the total monthly payments by the Tenant of a Unit for the following: use and occupancy of the Unit and land and associated facilities; any separately charged fees or service charges assessed by Borrower which are customarily charged in rental housing and required of all Tenants, other than security deposits; an allowance for the cost of an adequate level of service for utilities paid by the Tenant, including garbage collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service 5 863\101\1957241.4 or cable TV; and any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than Borrower, and paid by the Tenant. (ee) "Tenant" means the tenant household that occupies a Unit in the Development. (ff) "Tenant Selection Plan" has the meaning set forth in Section 4.3(b). (gg) "Term" means the period of time that commences on the date of this County Regulatory Agreement, and unless sooner terminated pursuant to the terms of this County Regulatory Agreement, expires on the fifty-fifth (55th) anniversary of the Completion Date; provided, however, if a record of the Completion Date cannot be located or established, the Term will expire on the fifty-seventh (57th) anniversary of this County Regulatory Agreement. (hh) "Unit(s)" means one (1) or more of the units in the Development. ARTICLE 2 AFFORDABILITY AND OCCUPANCY COVENANTS 2.1 Occupancy Requirements. (a) Extremely Low Income Units. During the Term Borrower shall cause seventeen (17) Units to be rented to and occupied by or, if vacant, available for occupancy by, Extremely Low Income Households. (b) Intermingling of Units. Borrower shall cause the County-Assisted Units to be intermingled throughout the Development and of comparable quality to all other Units. All Tenants must have equal access to and enjoyment of all common facilities in the Development. The County-Assisted Units are all One Bedroom Units. (c) Disabled Persons Occupancy. Borrower shall cause the Development to be constructed and operated at all times in compliance with the provisions of: (i) the Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of 1973 ("Section 504"), (iv) the United States Fair Housing Act, as amended, and (v) the Americans With Disabilities Act of 1990, which relate to disabled persons access. In compliance with Section 504, a minimum of four (4) Units must be constructed to be fully accessible to households with a mobility impaired member and an additional two (2) Units must be constructed to be fully accessible to hearing and/or visually impaired persons. Borrower shall indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to the County) the County, and its board members, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Borrower's failure to comply with applicable legal requirements related to housing for persons with disabilities. The provisions of this subsection will survive expiration of the Term or other termination of this County Regulatory Agreement, and remain in full force and effect. 6 863\101\1957241.4 (d) Senior Occupancy. Borrower has elected to operate the Development as a senior housing development and as such to require all Units in the Development, except for the resident manager's unit, to be occupied or held available for occupancy by households containing "elderly" or "senior citizen" residents. Borrower shall operate the Development at all times in compliance with the provisions of: (i) the Unruh Act, (ii) the United States Fair Housing Act, as amended, and (iii) the California Fair Employment and Housing Act, which relate to lawful senior housing. Borrower shall develop and implement appropriate age verification procedures to ensure compliance with the requirements of this Section. Borrower shall provide the County with a copy of its written verification procedures. Borrower shall indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the County) the County, and its boardmembers, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Borrower's failure to comply with applicable legal requirements related to housing for seniors. The provisions of this subsection will survive expiration of the Term or other termination of this County Regulatory Agreement, and remain in full force and effect. 2.2 Allowable Rent. (a) Extremely Low Income Rent. Subject to the provisions of Section 2.4 below, the Rent paid by a Tenant of an Extremely Low Income Unit may not exceed one-twelfth (1/12) of thirty percent (30%) of thirty percent (30%) of Median Income, adjusted for Assumed Household Size. (b) No Additional Fees. Borrower may not charge any fee, other than Rent, to any Tenant of the County-Assisted Units for any housing or other services provided by Borrower. 2.3 Rent Increases. (a) Rent Amount. The initial Rent for all County-Assisted Units must be approved by the County prior to occupancy. The County will provide Borrower with a schedule of maximum permissible Rents for the County-Assisted Units and the maximum monthly allowances for utilities and services (excluding telephone) annually. (b) Rent Increases. All Rent increases for all County-Assisted Units are subject to County approval. No later than sixty (60) days prior to the proposed implementation of any Rent increase affecting a County-Assisted Unit, Borrower shall submit to the County a schedule of any proposed increase in the Rent charged for County-Assisted Units. The Rent for such Units may be increased no more than once annually based upon the annual income certification described in Article 3. The County will disapprove a Rent increase if it violates the schedule of maximum permissible Rents for the County-Assisted Units provided to Borrower by the County, or is greater than a 5% increase over the previous year's Rent. Borrower shall give Tenants written notice at least thirty (30) days prior to any Rent increase, following completion of the County approval process set forth above. 7 863\101\1957241.4 2.4 Increased Income of Tenants. (a) Increased Income above Extremely Low Income but below Low Income Limit. If, upon the annual certification of the income of a Tenant of an Extremely Low Income Unit, Borrower determines that the income of the Tenant has increased above the qualifying limit for an Extremely Low Income Household, but not above the qualifying income for a Low Income Household, the Tenant may continue to occupy the Unit and the Tenant's Rent will remain at the Extremely Low Income Rent. Borrower shall then rent the next available Unit to an Extremely Low Income Household to comply with the requirements of Section 2.1(a) above, at a Rent not exceeding the maximum Rent specified in Section 2.2(a), or re-designate another comparable Unit in the Development with an Extremely Low Income Household an Extremely Low Income Unit, to comply with the requirements of Section 2.1(a) above. Upon renting the next available Unit in accordance with Section 2.1(a) or re-designating another Unit in the Development as an Extremely Low Income Unit, the Unit with the over-income Tenant will no longer be considered a County-Assisted Unit. (b) Non-Qualifying Household. If, upon the annual certification of the income a Tenant of a County-Assisted Unit, Borrower determines that the Tenant’s income has increased above the qualifying limit for a Low Income Household, the Tenant may continue to occupy the Unit. Upon the expiration of such Tenant's lease, Borrower may: (1) With 60 days’ advance written notice, increase such Tenant’s Rent to the lesser of (i) one-twelfth (1/12) of thirty percent (30%) of the actual Adjusted Income of the Tenant, and (ii) the fair market rent, and (2) Rent the next available Unit to an Extremely Low Income Household to comply with the requirements of Section 2.1 above, at a Rent not exceeding the maximum Rent specified in Section 2.2, or designate another comparable Unit that is occupied by an Extremely Low Income Household as a County-Assisted Unit, to meet the requirements of Section 2.1 above. On the day that Borrower complies with Section 2.1 in accordance with this Section 2.4(b), the Unit with the over-income Tenant will no longer be considered a County- Assisted Unit. (c) Termination of Occupancy. Upon termination of occupancy of a County- Assisted Unit by a Tenant, such Unit will be deemed to be continuously occupied by a household of the same income level as the initial income level of the vacating Tenant, until such unit is reoccupied, at which time categorization of the Unit will be established based on the occupancy requirements of Section 2.1. ARTICLE 3 INCOME CERTIFICATION; REPORTING; RECORDS 3.1 Income Certification. Borrower shall obtain, complete, and maintain on file, within sixty (60) days before expected occupancy and annually thereafter, income certifications from each Tenant renting any of the County-Assisted Units. Borrower shall make a good faith effort to verify the accuracy of the income provided by the applicant or occupying household, as 8 863\101\1957241.4 the case may be, in an income certification. To verify the information, Borrower shall take two or more of the following steps: (i) obtain a pay stub for the most recent pay period; (ii) obtain an income tax return for the most recent tax year; (iii) conduct a credit agency or similar search; (iv) obtain an income verification form from the applicant's current employer; (v) obtain an income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies; or (vi) if the applicant is unemployed and does not have a tax return, obtain another form of independent verification. Where applicable, Borrower shall examine at least two (2) months of relevant source documentation. Copies of Tenant income certifications are to be available to the County upon request. 3.2 Reporting Requirements. (a) Borrower shall submit to the County within one hundred eighty (180) days after the Completion Date, and not later than forty-five (45) days after the close of each calendar year, or such other date as may be requested by the County, a report that includes the following data for each Unit and specifically identifies which Units are County-Assisted Units: (i) Tenant income, (ii) the number of occupants, (iii) the Rent, (iv) the number of bedrooms, and (v) the initial address of each Tenant. To demonstrate continued compliance with Section 2.1 Borrower shall cause each annual report after the initial report to include a record of any subsequent Tenant substitutions and any vacancies in County-Assisted Units that have been filled. (b) Borrower shall submit to the County within forty-five (45) days after receipt of a written request, or such other time agreed to by the County, any other information or completed forms requested by the County in order to comply with reporting requirements of HUD, the State of California, and the County. 3.3 Tenant Records. Borrower shall maintain complete, accurate and current records pertaining to income and household size of Tenants. All Tenant lists, applications and waiting lists relating to the Development are to be at all times: (i) separate and identifiable from any other business of Borrower, (ii) maintained as required by the County, in a reasonable condition for proper audit, and (iii) subject to examination during business hours by representatives of the County. Borrower shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least five (5) years. The County may examine and make copies of all books, records or other documents of Borrower that pertain to the Development. 3.4 Development Records. (a) Borrower shall keep and maintain at the principal place of business of the Borrower set forth in Section 6.11 below, or elsewhere with the County's written consent, full, complete and appropriate books, records and accounts relating to the Development. Borrower shall cause all books, records and accounts relating to its compliance with the terms, provisions, covenants and conditions of the Loan Documents to be kept and maintained in accordance with generally accepted accounting principles consistently applied, and to be consistent with requirements of this County Regulatory Agreement. Borrower shall cause all books, records, and accounts to be open to and available for inspection and copying by HUD, the County, its auditors or other authorized representatives at reasonable intervals 9 863\101\1957241.4 during normal business hours. Borrower shall cause copies of all tax returns and other reports that Borrower may be required to furnish to any government agency to be open for inspection by the County at all reasonable times at the place that the books, records and accounts of Borrower are kept. Borrower shall preserve such records (including the records required under the HOME/CDBG Regulatory Agreement) for a period of not less than five (5) years after their creation in compliance with all HUD records and accounting requirements. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Loan is pending at the end of the record retention period stated herein, then Borrower shall retain the records until such action and all related issues are resolved. Borrower shall cause the records to include all invoices, receipts, and other documents related to expenditures from the Loan funds. Borrower shall cause records to be accurate and current and in a form that allows the County to comply with the record keeping requirements contained in 24 C.F.R. 92.508, and 24 C.F.R. 570.506. Such records are to include but are not limited to: (i) Records providing a full description of the activities undertaken with the use of the Loan funds; (ii) Records demonstrating compliance with the maintenance requirements set forth in Section 5.6; (iii) Records documenting compliance with the fair housing, equal opportunity, and affirmative fair marketing requirements; (iv) Financial records; and (v) Records demonstrating compliance with the marketing, tenant selection, social services, affordability, and income requirements. (b) The County shall notify Borrower of any records it deems insufficient. Borrower has fifteen (15) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the County in such notice, or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Borrower must begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible. ARTICLE 4 OPERATION OF THE DEVELOPMENT 4.1 Residential Use. Borrower shall operate the Development for residential use only. No part of the Development may be operated as transient housing. 4.2 Compliance with Loan Documents and Program Requirements. Borrower's actions with respect to the Property shall at all times be in full conformity with: (i) all requirements of the Loan Documents; and (ii) any other regulatory requirements imposed on the Development. 10 863\101\1957241.4 4.3 Marketing Plan; Tenant Selection Plan; and Social Services Plan. (a) Marketing Plan. (1) No later than six (6) months prior to the date construction of the Development is projected to be complete, Borrower shall submit to the County for approval its plan for marketing the Development to income-eligible households as required by this County Regulatory Agreement (the "Marketing Plan"). The Marketing Plan must include information on affirmative marketing efforts and compliance with fair housing laws and 24 C.F.R. 92.351(a). (2) Upon receipt of the Marketing Plan, the County will promptly review the Marketing Plan and will approve or disapprove it within fifteen (15) days after receipt. If the Marketing Plan is not approved, the County will give Borrower specific reasons for such disapproval and Borrower shall submit a revised Marketing Plan within fifteen (15) days of notification of the County's disapproval. Borrower shall follow this procedure for resubmission of a revised Marketing Plan until the Marking Plan is approved by the County. If the Borrower does not submit a revised Marketing Plan that is approved by the County at least three (3) months prior to the date completion of the Development is projected to be complete, Borrower will be in default of this County Regulatory Agreement. (b) Tenant Selection Plan. (1) No later than six (6) months prior to the date construction of the Development is projected to be complete, Borrower shall submit to the County, for its review and approval, Borrower's written tenant selection plan (the "Tenant Selection Plan"). Borrower's Tenant Selection Plan must, at a minimum, meet the requirements for tenant selection set out in 24 C.F.R. 92.253(d), and any modifications thereto. (2) Upon receipt of the Tenant Selection Plan, the County will promptly review the Tenant Selection Plan and will approve or disapprove it within fifteen (15) days after receipt. If the Tenant Selection Plan is not approved, the County will give Borrower specific reasons for such disapproval and Borrower shall submit a revised Tenant Selection Plan within fifteen (15) days of notification of the County's disapproval. Borrower shall follow this procedure for resubmission of a revised Tenant Selection Plan until the Tenant Selection Plan is approved by the County. If the Borrower does not submit a revised Tenant Selection Plan that is approved by the County at least three (3) months prior to the date construction of the Development is projected to be complete, Borrower will be in default of this County Regulatory Agreement. 4.4 Lease Provisions. (a) No later than four (4) months prior to the date construction of the Development is projected to be complete, Borrower shall submit to the County for approval Borrower’s proposed form of lease agreement for the County's review and approval. When leasing Units within the Development, Borrower shall use the form of lease approved by the County. The form of lease must comply with all requirements of this County Regulatory 11 863\101\1957241.4 Agreement, the other Loan Documents and must, among other matters: (1) provide for termination of the lease for failure to: (i) provide any information required under this County Regulatory Agreement or reasonably requested by Borrower to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Development in accordance with the standards set forth in this County Regulatory Agreement, or (ii) qualify as an Extremely Low Income Household as a result of any material misrepresentation made by such Tenant with respect to the income computation. (2) be for an initial term of not less than one (1) year, unless by mutual agreement between the Tenant and Borrower, and provide for no increase in Rent during such year. After the initial year of tenancy, the lease may b e month-to-month by mutual agreement of Borrower and the Tenant. Notwithstanding the above, any rent increases are subject to the requirements of Section 2.3 above. (3) include a provision that requires a Tenant who is residing in a Unit required to be accessible pursuant to Section 2.1(c) and who is not in need of an accessible Unit to move to a non-accessible Unit when a non-accessible Unit becomes available and another Tenant or prospective Tenant is in need of an accessible Unit. (b) Any termination of a lease or refusal to renew a lease for a County- Assisted Unit must be preceded by not less than sixty (60) days written notice to the Tenant by Borrower specifying the grounds for the action. (c) During the Term, Borrower shall comply with the Marking Plan and Tenant Selection Plan approved by the County. ARTICLE 5 PROPERTY MANAGEMENT AND MAINTENANCE 5.1 Management Responsibilities. Borrower is responsible for all management functions with respect to the Development, including without limitation the selection of Tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The County has no responsibility for management of the Development. Borrower shall retain a professional property management company approved by the County in its reasonable discretion to perform Borrower's management duties hereunder. An on-site property manager is also required. 5.2 Management Agent. Borrower shall cause the Development to be managed by an experienced management agent reasonably acceptable to the County, with a demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing (the "Management Agent"). The County has approved Eden Housing Management, Inc. as the Management Agent. Borrower shall submit for the County's approval the identity of any proposed subsequent management agent. Borrower shall also submit such 12 863\101\1957241.4 additional information about the background, experience and financial condition of any proposed management agent as is reasonably necessary for the County to determine whether the proposed management agent meets the standard for a qualified management agent set forth above. If the proposed management agent meets the standard for a qualified management agent set forth above, the County shall approve the proposed management agent by notifying Borrower in writing. Unless the proposed management agent is disapproved by the County within thirty (30) days, which disapproval is to state with reasonable specificity the basis for disapproval, it shall be deemed approved. 5.3 Periodic Performance Review. The County reserves the right to conduct an annual (or more frequently, if deemed necessary by the County) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable the County to determine if the Development is being operated and managed in accordance with the requirements and standards of this County Regulatory Agreement. Borrower shall cooperate with the County in such reviews. 5.4 Replacement of Management Agent. If, as a result of a periodic review, the County determines in its reasonable judgment that the Development is not being operated and managed in accordance with any of the material requirements and standards of this County Regulatory Agreement, the County shall deliver notice to Borrower of its intention to cause replacement of the Management Agent, including the reasons therefor. Within fifteen (15) days after receipt by Borrower of such written notice, the County staff and Borrower shall meet in good faith to consider methods for improving the financial and operating status of the Development, including, without limitation, replacement of the Management Agent. If, after such meeting, County staff recommends in writing the replacement of the Management Agent, Borrower shall promptly dismiss the then-current Management Agent, and shall appoint as the Management Agent a person or entity meeting the standards for a management agent set forth in Section 5.2 above and approved by the County pursuant to Section 5.2 above. Any contract for the operation or management of the Development entered into by Borrower shall provide that the Management Agent may be dismissed and the contract terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section constitutes a default under this County Regulatory Agreement, and the County may enforce this provision through legal proceedings as specified in Section 6.5 below. 5.5 Approval of Management Policies. Borrower shall submit its written management policies with respect to the Development to the County for its review, and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this County Regulatory Agreement. 5.6 Property Maintenance. (a) Borrower shall maintain, for the entire Term of this County Regulatory Agreement, all interior and exterior Improvements, including landscaping in decent, safe and sanitary condition, and in good condition and repair, in accordance with the maintenance 13 863\101\1957241.4 standards provided by the County (the "Maintenance Standards"). Borrower shall cause the Development to be: (i) maintained in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials; and (ii) free of all health and safety defects. Borrower shall correct any life-threatening maintenance deficiencies, including those set forth in the Maintenance Standards immediately upon notification. (b) At the beginning of each year of the Term, Borrower shall certify to the County that the Development is in compliance with the Maintenance Standards. 5.7 Property Inspections. (a) On-Site Physical Inspections. The County will perform on-site inspections of the Development during the Term to ensure compliance with the Maintenance Standards. The County will perform an on-site inspection within twelve months after completion of construction of the Development and at least once every three (3) years during the Term. If the Development is found to have health and safety violations, the County may perform more frequent inspections. Borrower shall cooperate in such inspections. (b) Violation of Maintenance Standards. If after an inspection, the County determines that Borrower is in violation of the Maintenance Standards, the County will provide Borrower a written report of the violations. Borrower shall correct the violations set forth in the report provided to Borrower by County. The County will perform a follow-up inspection to verify that the violations have been corrected. If such violations continue for a period of ten (10) days after delivery of the report to Borrower by the County with respect to graffiti, debris, waste material, and general maintenance, or thirty (30) days after delivery of the report to Borrower by the County with respect to landscaping and building improvements, then the County, in addition to whatever other remedy it may have at law or in equity, has the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the violation. Pursuant to such right of entry, the County is permitted (but is not required) to enter upon the Property and to perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the County and/or costs of such cure, which amount Borrower shall promptly pay to the County upon demand. 14 863\101\1957241.4 ARTICLE 6 MISCELLANEOUS 6.1 Nondiscrimination. (a) All of the Units must be available for occupancy on a continuous basis to members of the general public who are income eligible. Borrower may not give preference to any particular class or group of persons in renting or selling the Units, except to the extent that the Units are required to be leased to income eligible households pursuant to this County Regulatory Agreement and the HOME/CDBG Regulatory Agreement. Borrower herein covenants by and for Borrower, assigns, and all persons claiming under or through Borrower, that there exist no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, source of income (e.g., SSI), ancestry, age, familial status (except for lawful senior housing in accordance with state and federal law), or disability, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any unit nor will Borrower or any person claiming under or through Borrower, 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 of any unit or in connection with the employment of persons for the construction, operation and management of any unit. Borrower shall accept as Tenants, on the same basis as all other prospective Tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor. Borrower may not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective Tenants, nor will Borrower apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective Tenants. 6.2 Application of Provisions. The provisions of this County Regulatory Agreement apply to the Property for the entire Term even if the Loan is paid in full prior to the end of the Term. This County Regulatory Agreement binds any successor, heir or assign of Borrower, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the County. The County is making the Loan on the condition, and in consideration of, this provision, and would not do so otherwise. 6.3 Notice of Expiration of Term. (a) At least six (6) months prior to the expiration of the Term, Borrower shall provide by first-class mail, postage prepaid, a notice to all Tenants containing (i) the anticipated date of the expiration of the Term, (ii) any anticipated increase in Rent upon the expiration of the Term, (iii) a statement that a copy of such notice will be sent to the County, and (iv) a statement that a public hearing may be held by the County on the issue and that the Tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. Borrower shall 15 863\101\1957241.4 also file a copy of the above-described notice with the County Assistant Deputy Director, Department of Conservation and Development. (b) In addition to the notice required above, Borrower shall comply with the requirements set forth in California Government Code Sections 65863.10 and 65863.11. Such notice requirements include: (i) a twelve (12) month notice to existing tenants, prospective tenants and Affected Public Agencies (as defined in California Government Code Section 65863.10(a)) prior to the expiration of the Term, (ii) a six (6) month notice requirement to existing tenants, prospective tenants and Affected Public Agencies prior to the expiration of the Term; (iii) a notice of an offer to purchase the Development to "qualified entities" (as defined in California Government Code Section 65863.11(d)), if the Development is to be sold within five (5) years of the end of the Term; (iv) a notice of right of first refusal within the one hundred eighty (180) day period that qualified entities may purchase the Development. 6.4 Covenants to Run With the Land. The County and Borrower hereby declare their express intent that the covenants and restrictions set forth in this County Regulatory Agreement run with the land, and bind all successors in title to the Property, provided, however, that on the expiration of the Term said covenants and restrictions expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof, is to be held conclusively to have been executed, delivered and accepted subject to the covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the County expressly releases such conveyed portion of the Property from the requirements of this County Regulatory Agreement. 6.5 Enforcement by the County. If Borrower fails to perform any obligation under this County Regulatory Agreement, and fails to cure the default within thirty (30) days after the County has notified Borrower in writing of the default or, if the default cannot be cured within thirty (30) days, fails to commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure within sixty (60) days, the County may enforce this County Regulatory Agreement by any or all of the following actions, or any other remedy provided by law: (a) Calling the Loan. The County may declare a default under the Note, accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed of Trust. (b) Action to Compel Performance or for Damages. The County may bring an action at law or in equity to compel Borrower's performance of its obligations under this County Regulatory Agreement, and may seek damages. (c) Remedies Provided Under Loan Documents. The County may exercise any other remedy provided under the Loan Documents. The County shall provide notice of a default to Borrower's limited partner in the manner set forth in Section 6.5 of the Loan Agreement. 16 863\101\1957241.4 6.6 Attorneys' Fees and Costs. In any action brought to enforce this County Regulatory Agreement, the prevailing party must be entitled to all costs and expenses of suit, including reasonable attorneys' fees. This section must be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute. 6.7 Recording and Filing. The County and Borrower shall cause this County Regulatory Agreement, and all amendments and supplements to it, to be recorded in the Official Records of the County of Contra Costa. 6.8 Governing Law. This County Regulatory Agreement is governed by the laws of the State of California. 6.9 Waiver of Requirements. Any of the requirements of this County Regulatory Agreement may be expressly waived by the County in writing, but no waiver by the County of any requirement of this County Regulatory Agreement extends to or affects any other provision of this County Regulatory Agreement, and may not be deemed to do so. 6.10 Amendments. This County Regulatory Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title that is duly recorded in the official records of the County of Contra Costa. 6.11 Notices. Any notice requirement set forth herein will be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, addressed to the appropriate party as follows: County: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director Borrower: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541 Attention: President Investor Limited Partner: Wells Fargo Affordable Housing Community Development Corporation MAC D1053-170 301 S. College Street, 17th Floor Charlotte, NC 28288-0173 Attn: Director of Tax Credit Asset Management 17 863\101\1957241.4 with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Dave Dahl, Esq. Such addresses may be changed by notice to the other party given in the same manner as provided above. 6.12 Severability. If any provision of this County Regulatory Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this County Regulatory Agreement will not in any way be affected or impaired thereby. 6.13 Multiple Originals; Counterparts. This County Regulatory Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 6.14 HOME/CDBG Regulatory Agreement. The County and Borrower are entering into the HOME/CDBG Regulatory Agreement concurrently with this County Regulatory Agreement. The HOME/CDBG Regulatory Agreement will be in effect for twenty-one (21) years from the Completion Date (the "HOME Term") and include HOME and CDBG requirements applicable to the use of HOME Funds and CDBG Funds. Compliance with the terms of the HOME/CDBG Regulatory Agreement will be deemed compliance with this County Regulatory Agreement during the HOME Term. In the event of a conflict between this County Regulatory Agreement and the HOME/CDBG Regulatory Agreement during the HOME Term, the terms of the HOME/CDBG Regulatory Agreement will prevail. [remainder of page intentionally left blank] 18 Signature page County Regulatory Agreement 863\101\1957241.4 WHEREAS, this County Regulatory Agreement has been entered into by the undersigned as of the date first written above. COUNTY: COUNTY OF CONTRA COSTA, a political subdivision of the State of California By: __________________ John Kopchik Director, Department of Conservation and Development Approved as to form: SHARON L. ANDERSON County Counsel By: Kathleen Andrus Deputy County Counsel BORROWER: El Cerrito Senior, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its general partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its manager By:_______________________ Its:_______________________ 863\101\1957241.4 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 863\101\1957241.4 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. A-1 863\101\1957241.4 EXHIBIT A Legal Description The land is situated in the State of California, County of Contra Costa, and is described as follows: 863\101\1956362.3 1 PROMISSORY NOTE Hana Gardens Apartments (HOME and CDBG Funds) $2,100,000 Martinez, California ____________, 2016 FOR VALUE RECEIVED, the undersigned El Cerrito Senior, L.P., a California limited partnership ("Borrower") hereby promises to pay to the order of the County of Contra Costa, a political subdivision of the State of California ("Holder"), the principal amount of Two Million One Hundred Thousand Dollars ($2,100,000) plus interest thereon pursuant to Section 2 below. All capitalized terms used but not defined in this Note have the meanings set forth in the Loan Agreement. 1. Borrower's Obligation. This Note evidences Borrower's obligation to repay Holder the principal amount of Two Million One Hundred Thousand Dollars ($2,100,000) with interest for the funds loaned to Borrower by Holder to finance the acquisition and construction of the Development pursuant to the Development Loan Agreement between Borrower and Holder of even date herewith (the "Loan Agreement"). 2. Interest. (a) Subject to the provisions of Subsection (b) below, the Loan bears simple interest at a rate of three percent (3%) per annum from the date of disbursement until full repayment of the principal balance of the Loan. (b) If an Event of Default occurs, interest will accrue on all amounts due under this Note at the Default Rate until such Event of Default is cured by Borrower or waived by Holder. 3. Term and Repayment Requirements. Principal and interest under this Note is due and payable as set forth in Section 2.8 of the Loan Agreement. The unpaid principal balance hereunder, together with accrued interest thereon, is due and payable no later than the date that is the fifty-fifth (55th) anniversary of the Completion Date; provided, however, if a record of the Completion Date cannot be located or established, the Loan is due and payable on the fifty- seventh (57th) anniversary of the date of this Note. 4. No Assumption. This Note is not assumable by the successors and assigns of Borrower without the prior written consent of Holder, except as provided in the Loan Agreement. 5. Security. This Note, with interest, is secured by the Deed of Trust. Upon execution, the Deed of Trust will be recorded in the official records of Contra Costa County, California. Upon recordation of the Deed of Trust, this Note will become nonrecourse to 863\101\1956362.3 2 Borrower and Borrower's partners, pursuant to and except as provided in Section 2.10 of the Loan Agreement which Section 2.10 is hereby incorporated into this Note. The terms of the Deed of Trust are hereby incorporated into this Note and made a part hereof. 6. Terms of Payment. (a) Borrower shall make all payments due under this Note in currency of the United States of America to Holder at Department of Conservation and Development, 30 Muir Road, Martinez, CA 94553, Attention: Affordable Housing Program Manager, or to such other place as Holder may from time to time designate. (b) All payments on this Note are without expense to Holder. Borrower shall pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of Holder, incurred in connection with the enforcement of this Note and the release of any security hereof. (c) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest that exceeds the amount that Holder may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate will automatically be deducted from the principal balance owing on this Note, so that in no event is Borrower obligated under the terms of this Note to pay any interest that would exceed the lawful rate. (d) The obligations of Borrower under this Note are absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever. 7. Event of Default; Acceleration. (a) Upon the occurrence of an Event of Default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note and the Deed of Trust will, at the option of Holder, become immediately due and payable without further demand. (b) Holder's failure to exercise the remedy set forth in Subsection 7(a) above or any other remedy provided by law upon the occurrence of an Event of Default does not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other Event of Default. The acceptance by Holder of any payment that is less than the total of all amounts due and payable at the time of such payment does not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the express consent of Holder, except as and to the extent otherwise provided by law. 8. Waivers. (a) Borrower hereby waives diligence, presentment, protest and demand, and 863\101\1956362.3 3 notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that Holder may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower. (b) Any extension of time for payment of this Note or any installment hereof made by agreement of Holder with any person now or hereafter liable for payment of this Note must not operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part. 9. Miscellaneous Provisions. (a) All notices to Holder or Borrower are to be given in the manner and at the addresses set forth in the Loan Agreement, or to such addresses as Holder and Borrower may therein designate. (b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, regardless of whether suit is filed to seek enforcement. (c) This Note is governed by the laws of the State of California. (d) The times for the performance of any obligations hereunder are to be strictly construed, time being of the essence. (e) The Loan Documents, of which this Note is a part, contain the entire agreement between the parties as to the Loan. This Note may not be modified except upon the written consent of the parties. [signature on following page] signature page County Loan Promissory Note 863\101\1956362.3 4 IN WITNESS WHEREOF, Borrower is executing this Promissory Note as of the day and year first above written. El Cerrito Senior, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its general partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its manager By:____________________ Its:____________________ 863\101\1956364.4 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Contra Costa County Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director No fee for recording pursuant to Government Code Section 27383 DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FIXTURE FILING Hana Gardens Apartments (HOME and CDBG Funds) THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FIXTURE FILING ("Deed of Trust") is made as of ______________, 2016, by and among El Cerrito Senior, L.P., a California limited partnership ("Trustor"), Old Republic Title Company, a California corporation ("Trustee"), and the County of Contra Costa, a political subdivision of the State of California ("Beneficiary"). FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, Trustor's fee interest in the property located in the County of Contra Costa, State of California, that is described in the attached Exhibit A, incorporated herein by this reference (the "Property"). TOGETHER WITH all interest, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, including (without limiting the generality of the foregoing) all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements of every kind and description now or hereafter erected thereon, and all property of Trustor now or hereafter affixed to or placed upon the Property; TOGETHER WITH all building materials and equipment now or hereafter delivered to said property and intended to be installed therein; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, 863\101\1956364.4 2 adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property; TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages to the extent Beneficiary has an interest in such awards for taking as provided in Paragraph 4.1 herein; TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor, whether or not the same are, or will be, attached to said building or buildings in any manner; and TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment, work in process and other personal property to be incorporated into the Property; all goods, materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other personal property now or hereafter appropriated for use on the Property, whether stored on the Property or elsewhere, and used or to be used in connection with the Property; all rents, issues and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles, chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance and condemnation awards and proceeds, trade names, trademarks and service marks arising from or related to the Property and any business conducted thereon by Trustor; all replacements, additions, accessions and proceeds; and all books, records and files relating to any of the foregoing. All of the foregoing, together with the Property, is herein referred to as the "Security." To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever. FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS (together, the "Secured Obligations"): A. Payment to Beneficiary of all sums at any time owing under or in connection with (i) the Note (defined in Section 1.6 below) until paid in full or cancelled, and (ii) any other amounts owing under the Loan Documents (defined in Section 1.5 below). Principal and other payments are due and payable as provided in the Note or other Loan Documents, as applicable. 863\101\1956364.4 3 The Note and all its terms are incorporated herein by reference, and this conveyance secures any and all extensions thereof, however evidenced; B. Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to advance said sums and the expiration of any applicable cure period, with interest thereon as provided herein; C. Performance of every obligation, covenant or agreement of Trustor contained herein and in the Loan Documents; and D. All modifications, extensions and renewals of any of the Secured Obligations (including without limitation, (i) modifications, extensions or renewals at a different rate of interest, or (ii) deferrals or accelerations of the required principal payment dates or interest payment dates or both, in whole or in part), however evidenced, whether or not any such modification, extension or renewal is evidenced by a new or additional promissory note or notes. AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: ARTICLE 1 DEFINITIONS In addition to the terms defined elsewhere in this Deed of Trust, the following terms have the following meanings in this Deed of Trust: Section 1.1 The term "Default Rate" means the lesser of the maximum rate permitted by law and ten percent (10%) per annum. Section 1.2 The term "Intercreditor Agreement" means that certain Intercreditor Agreement of even date herewith, among Trustor, Beneficiary, and the City of El Cerrito recorded concurrently herewith. Section 1.3 The term "Loan" means the loan made by Beneficiary to Trustor in the amount of Two Million One Hundred Thousand Dollars ($2,100,000). Section 1.4 The term "Loan Agreement" means that certain Development Loan Agreement between Trustor and Beneficiary, of even date herewith, as such may be amended from time to time, providing for the Beneficiary to loan to Trustor Two Million One Hundred Thousand Dollars ($2,100,000). Section 1.5 The term "Loan Documents" means this Deed of Trust, the Note, the Loan Agreement, the Intercreditor Agreement, and the Regulatory Agreement, and any other agreements, debt, loan or security instruments between Trustor and Beneficiary relating to the Loan. 863\101\1956364.4 4 Section 1.6 The term "Note" means the promissory note in the principal amount of Two Million One Hundred Thousand Dollars ($2,100,000) of even date herewith, executed by Trustor in favor of Beneficiary, as it may be amended or restated, the payment of which is secured by this Deed of Trust. The terms and provisions of the Note are incorporated herein by reference. Section 1.7 The term "Principal" means the amounts required to be paid under the Note. Section 1.8 The term "Regulatory Agreement" means collectively, the County Regulatory Agreement and Declaration of Restrictive Covenants, and HOME/ CDBG Regulatory Agreement and Declaration of Restrictive Covenants, both of even date herewith by and between Beneficiary and Trustor and recorded concurrently herewith. ARTICLE 2 MAINTENANCE AND MODIFICATION OF THE PROPERTY AND SECURITY Section 2.1 Maintenance and Modification of the Property by Trustor. The Trustor agrees that at all times prior to full payment and performance of the Secured Obligations, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Security or cause the Security to be maintained and preserved in good condition. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary has no responsibility in any of these matters or for the making of improvements or additions to the Security. Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty (30) days or more, and to take all other reasonable steps to forestall the assertion of claims of lien against the Security or any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary as its agent (said agency being coupled with an interest) with the authority, but without any obligation, to file for record any notices of completion or cessation of labor or any other notice that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the Loan Documents; provided, however, that Beneficiary exercises its rights as agent of Trustor only in the event that Trustor fails to take, or fails to diligently continue to take, those actions as hereinbefore provided. Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or claims as Beneficiary specifies upon laborers, materialmen, subcontractors or other persons who have furnished or claim to have furnished labor, services or materials in connection with the Security. Nothing herein contained requires Trustor to pay any claims for labor, materials or services which Trustor in good faith disputes and is diligently contesting provided that Trustor shall, within thirty (30) days after the filing of any claim of lien, record in the Office of the 863\101\1956364.4 5 Recorder of Contra Costa County, a surety bond in an amount 1 and 1/2 times the amount of such claim item to protect against a claim of lien. Section 2.2 Granting of Easements. Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in the nature of easements with respect to any property or rights included in the Security except those required or desirable for installation and maintenance of public utilities including, without limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law, and as approved, in writing, by Beneficiary. Section 2.3 Assignment of Rents. As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of the Property including those now due, past due, or to become due by virtue of any lease or other agreement for the occupancy or use of all or any part of the Property, regardless of to whom the rents and revenues of the Property are payable, subject to the rights of senior lenders that are approved by the Beneficiary pursuant to the Loan Agreement. Trustor hereby authorizes Beneficiary or Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however, that prior to written notice given by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan Documents, Trustor shall collect and receive all rents and revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the rents and revenues so collected to the Secured Obligations with the balance, so long as no such breach has occurred and is continuing, to the account of Trustor, it being intended by Trustor and Beneficiary that this assignment of rents constitutes an absolute assignment and not an assignment for additional security only. Upon delivery of written notice by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan Documents, and without the necessity of Beneficiary entering upon and taking and maintaining full control of the Property in person, by agent or by a court-appointed receiver, Beneficiary shall immediately be entitled to possession of all rents and revenues of the Property as specified in this Section 2.3 as the same becomes due and payable, including but not limited to, rents then due and unpaid, and all such rents will immediately upon delivery of such notice be held by Trustor as trustee for the benefit of Beneficiary only; provided, however, that the written notice by Beneficiary to Trustor of the breach by Trustor contains a statement that Beneficiary exercises its rights to such rents. Trustor agrees that commencing upon delivery of such written notice of Trustor's breach by Beneficiary to Trustor, each tenant of the Property shall make such rents payable to and pay such rents to Beneficiary or Beneficiary's agents on Beneficiary's written demand to each tenant therefor, delivered to each tenant personally, by mail or by delivering such demand to each rental unit, without any liability on the part of said tenant to inquire further as to the existence of a default by Trustor. Trustor hereby covenants that Trustor has not executed any prior assignment of said rents, other than as security to lenders approved by Beneficiary pursuant to the Loan Agreement, that Trustor has not performed, and will not perform, any acts or has not executed and will not execute, any instrument which would prevent Beneficiary from exercising its rights under this 863\101\1956364.4 6 Section 2.3, and that at the time of execution of this Deed of Trust, there has been no anticipation or prepayment of any of the rents of the Property for more than two (2) months prior to the due dates of such rents. Trustor covenants that Trustor will not hereafter collect or accept payment of any rents of the Property more than two (2) months prior to the due dates of such rents. Trustor further covenants that, so long as the Secured Obligations are outstanding, Trustor will execute and deliver to Beneficiary such further assignments of rents and revenues of the Property as Beneficiary may from time to time request. Upon Trustor's breach of any covenant or agreement of Trustor in the Loan Documents, Beneficiary may in person, by agent or by a court-appointed receiver, regardless of the adequacy of Beneficiary's security, enter upon and take and maintain full control of the Property in order to perform all acts necessary and appropriate for the operation and maintenance thereof including, but not limited to, the execution, cancellation or modification of leases, the collection of all rents and revenues of the Property, the making of repairs to the Property and the execution or termination of contracts providing for the management or maintenance of the Property, all on such terms as are deemed best to protect the security of this Deed of Trust. In the event Beneficiary elects to seek the appointment of a receiver for the Property upon Trustor's breach of any covenant or agreement of Trustor in this Deed of Trust, Trustor hereby expressly consents to the appointment of such receiver. Beneficiary or the receiver will be entitled to receive a reasonable fee for so managing the Property. All rents and revenues collected subsequent to delivery of written notice by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan Documents are to be applied first to the costs, if any, of taking control of and managing the Property and collecting the rents, including, but not limited to, attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the Property, premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this deed of Trust. Beneficiary or the receiver is to have access to the books and records used in the operation and maintenance of the Property and will be liable to account only for those rents actually received. Beneficiary is not liable to Trustor, anyone claiming under or through Trustor or anyone having an interest in the Property by reason of anything done or left undone by Beneficiary under this Section 2.3. If the rents of the Property are not sufficient to meet the costs, if any, of taking control of and managing the Property and collecting the rents, any funds expended by Beneficiary for such purposes will become part of the Secured Obligations pursuant to Section 3.3 hereof. Unless Beneficiary and Trustor agree in writing to other terms of payment, such amounts are payable by Trustor to Beneficiary upon notice from Beneficiary to Trustor requesting payment thereof and will bear interest from the date of disbursement at the rate stated in Section 3.3. If the Beneficiary or the receiver enters upon and takes and maintains control of the Property, neither that act nor any application of rents as provided herein will cure or waive any default under this Deed of Trust or invalidate any other right or remedy available to Beneficiary under applicable law or under this Deed of Trust. This assignment of rents of the Property will terminate at such time as this Deed of Trust ceases to secure the Secured Obligations. 863\101\1956364.4 7 ARTICLE 3 TAXES AND INSURANCE; ADVANCES Section 3.1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to the date of delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company that are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor is not required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof is promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this Section 3.1. With respect to taxes, special assessments or other similar governmental charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of the Security; provided, however, if such taxes, assessments or charges can be paid in installments, Trustor may pay in such installments. Except as provided in clause (b) of the first sentence of this paragraph, the provisions of this Section 3.1 may not be construed to require that Trustor maintain a reserve account, escrow account, impound account or other similar account for the payment of future taxes, assessments, charges and levies. In the event that Trustor fails to pay any of the items required by this Section to be paid by Trustor, Beneficiary may (but is under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay such items within seven (7) business days after receipt of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted by law, will become part of the Secured Obligations secured hereby, and Trustor agrees to pay all such amounts. Section 3.2 Provisions Respecting Insurance. Trustor agrees to provide insurance conforming in all respects to that required under the Loan Documents during the course of construction and following completion, and at all times until all amounts secured by this Deed of Trust have been paid, all Secured Obligations secured hereunder have been fulfilled, and this Deed of Trust has been reconveyed. All such insurance policies and coverages are to be maintained at Trustor's sole cost and expense. Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect, are to be delivered to the Beneficiary upon demand therefor at any time prior to Trustor's satisfaction of the Secured Obligations. Section 3.3 Advances. In the event the Trustor fails to maintain the full insurance coverage required by this Deed of Trust or fails to keep the Security in accordance with the Loan Documents, the Beneficiary, after at least seven (7) days prior notice to Trustor, may (but is under no obligation to) (i) take out the required policies of insurance and pay the premiums on the same, and (ii) make any repairs or replacements that are necessary and provide for payment thereof. All 863\101\1956364.4 8 amounts so advanced by the Beneficiary will become part of the Secured Obligations (together with interest as set forth below) and will be secured hereby, which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid, will bear interest from the date of the advance at the Default Rate. ARTICLE 4 DAMAGE, DESTRUCTION OR CONDEMNATION Section 4.1 Awards and Damages. Subject to the rights of senior lenders, all judgments, awards of damages, settlements and compensation made in connection with or in lieu of (1) the taking of all or any part of or any interest in the Property by or under assertion of the power of eminent domain, (2) any damage to or destruction of the Property or any part thereof by insured casualty, and (3) any other injury or damage to all or any part of the Property (collectively, the "Funds") are hereby assigned to and are to be paid to the Beneficiary by a check made payable to the Beneficiary. The Beneficiary is authorized and empowered (but not required) to collect and receive any Funds and is authorized to apply them in whole or in part to any indebtedness or obligation secured hereby, in such order and manner as the Beneficiary determines at its sole option, subject to the provisions of Section 4.8 of the Loan Agreement regarding restoration of improvements following damage or destruction. The Beneficiary is entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment. Application of all or any part of the Funds collected and received by the Beneficiary or the release thereof will not cure or waive an y default under this Deed of Trust. ARTICLE 5 AGREEMENTS AFFECTING THE PROPERTY; FURTHER ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST Section 5.1 Other Agreements Affecting Property. Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Loan Documents and any other agreement of any nature whatsoever now or hereafter involving or affecting the Security or any part thereof. Section 5.2 Agreement to Pay Attorneys' Fees and Expenses. In the event of any Event of Default (as defined in Section 7.1) hereunder, and if the Beneficiary employs attorneys or incurs other expenses for the collection of amounts due hereunder or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary. Any such amounts paid by the Beneficiary will be added to the Secured Obligations, and will bear interest from the date such expenses are incurred at the Default Rate. 863\101\1956364.4 9 Section 5.3 Payment of the Principal. The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth in the Note in the amounts and by the times set out therein. Section 5.4 Personal Property. To the maximum extent permitted by law, the personal property subject to this Deed of Trust is deemed to be fixtures and part of the real property and this Deed of Trust constitutes a fixtures filing under the California Commercial Code. As to any personal property not deemed or permitted to be fixtures, this Deed of Trust constitutes a security agreement under the California Commercial Code. Section 5.5 Financing Statement. The Trustor shall execute and deliver to the Beneficiary such financing statements pursuant to the appropriate statutes, and any other documents or instruments as are required to convey to the Beneficiary a valid perfected security interest in the Security. The Trustor shall perform all acts that the Beneficiary reasonably requests so as to enable the Beneficiary to maintain a valid perfected security interest in the Security in order to secure the payment of the Note in accordance with its terms. The Beneficiary is authorized to file a cop y of any such financing statement in any jurisdiction(s) as it deems appropriate from time to time in order to protect the security interest established pursuant to this instrument. Section 5.6 Operation of the Security. The Trustor shall operate the Security (and, in case of a transfer of a portion of the Security subject to this Deed of Trust, the transferee shall operate such portion of the Security) in full compliance with the Loan Documents. Section 5.7 Inspection of the Security. At any and all reasonable times upon seventy-two (72) hours' notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, may inspect the Security, without payment of charges or fees. Section 5.8 Nondiscrimination. The Trustor herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there will be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor will the Trustor itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing covenants run with the land. 863\101\1956364.4 10 ARTICLE 6 HAZARDOUS WASTE Trustor shall keep and maintain the Property (including, but not limited to, soil and ground water conditions) in compliance with all Hazardous Materials Laws and shall not cause or permit the Property to be in violation of any Hazardous Materials Law (defined below). Trustor may not cause or permit the use, generation, manufacture, storage or disposal of on, under, or about the Property or transportation to or from the Property of (i) any substance, material, or waste that is petroleum, petroleum-related, or a petroleum by-product, asbestos or asbestos-containing material, polychlorinated biphenyls, flammable, explosive, radioactive, freon gas, radon, or a pesticide, herbicide, or any other agricultural chemical, and (ii) any waste, substance or material defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "toxic materials", "toxic waste", "toxic substances," or words of similar import under any Hazardous Materials Law (collectively referred to hereinafter as "Hazardous Materials"), except such of the foregoing as may be customarily used in construction or operation of a multi-family residential development. Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of: (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, health, industrial hygiene, environmental conditions, or the regulation or protection of the environment, and all amendments thereto as of this date and to be added in the future and any successor statute or rule or regulation promulgated thereto ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party against Trustor or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above are hereinafter referred to as "Hazardous Materials Claims"); and (iii) Trustor's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property" (as defined in California Health and Safety Code Section 25117.4) under the provision of California Health and Safety Code Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. Beneficiary has the right to join and participate in, as a party if it so elects, and be represented by counsel acceptable to Beneficiary (or counsel of its own choice if a conflict exists with Trustor) in, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims, and to have its reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall indemnify and hold harmless Beneficiary and its boardmembers, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, fine, penalty, judgment, award, settlement, expense or liability, directly or indirectly arising out of or attributable to: (i) any actual or alleged past or present violation of any Hazardous Materials Law; (ii) any Hazardous Materials Claim; (iii) any actual or alleged past or present use, 863\101\1956364.4 11 generation, manufacture, storage, release, threatened release, discharge, disposal, transportation, or presence of Hazardous Materials on, under, or about the Property; (iv) any investigation, cleanup, remediation, removal, or restoration work of site conditions of the Property relating to Hazardous Materials (whether on the Property or any other property); and (v) the breach of any representation of warranty by or covenant of Trustor in this Article, and Section 5.1(l) of the Loan Agreement. Such indemnity must include, without limitation: (x) all consequential damages; (y) the costs of any required or necessary investigation, repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (z) all reasonable costs and expenses incurred by Beneficiary in connection with clauses (x) and (y), including but not limited to reasonable attorneys' fees and consultant fees. This indemnification applies whether or not any government agency has issued a cleanup order. Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property; (2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the marketing of any rental space on the Property; and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties). This obligation to indemnify will survive reconveyance of this Deed of Trust and will not be diminished or affected in any respect as a result of any notice, disclosure, knowledge, if any, to or by Beneficiary of Hazardous Materials. Without Beneficiary's prior written consent, which may not be unreasonably withheld, Trustor may not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in Beneficiary's reasonable judgment, impairs the value of the Beneficiary's security hereunder; provided, however, that Beneficiary's prior consent is not necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain Beneficiary's consent before taking such action, provided that in such event Trustor notifies Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if (i) a particular remedial action is ordered by a court of competent jurisdiction; (ii) Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial action which would result in less impairment of Beneficiary's security hereunder; or (iv) the action has been agreed to by Beneficiary. The Trustor hereby acknowledges and agrees that (i) this Article is intended as the Beneficiary's written request for information (and the Trustor's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Deed of Trust or any of the other Loan Documents (together with any indemnity applicable to a breach of any such representation and warranty) with respect to the environmental condition of the property is intended by the 863\101\1956364.4 12 Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736. In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1), then, without otherwise limiting or in any way affecting the Beneficiary's or the Trustee's rights and remedies under this Deed of Trust, the Beneficiary may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and remedies of an unsecured creditor, including reduction of its claim against the Trustor to judgment, and (b) any other rights and remedies permitted by law. For purposes of determining the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Trustor will be deemed to have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and the Trustor knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the Beneficiary in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the Default Rate until paid, will be added to the indebtedness secured by this Deed of Trust and will be due and payable to the Beneficiary upon its demand made at any time following the conclusion of such action. ARTICLE 7 EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default. The following are events of default following the expiration of any applicable notice and cure periods (each an "Event of Default"): (i) failure to make any payment to be paid by Trustor under the Loan Documents; (ii) failure to observe or perform any of Trustor's other covenants, agreements or obligations under the Loan Documents, including, without limitation, the provisions concerning discrimination; (iii) failure to make any payment or observe or perform any of Trustor's other covenants, agreements, or obligations under any Secured Obligations, which default is not cured within the times and in the manner provided therein; and (iv) failure to make any payments or observe or perform any of Trustor's other covenants, agreements or obligations under any other debt instrument or regulatory agreement secured by the Property, which default is not cured within the time and in the manner provided therein. Beneficiary shall provide notice of an Event of Default in the manner set forth in the Loan Agreement. 863\101\1956364.4 13 Section 7.2 Acceleration of Maturity. If an Event of Default has occurred and is continuing, then at the option of the Beneficiary, the amount of any payment related to the Event of Default and all unpaid Secured Obligations are immediately due and payable, and no omission on the part of the Beneficiary to exercise such option when entitled to do so may be construed as a waiver of such right. Section 7.3 The Beneficiary's Right to Enter and Take Possession. If an Event of Default has occurred and is continuing, the Beneficiary may: (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts that it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security will not cure or waive any Event of Default or Notice of Sale (as defined in Section 7.3(c), below) hereunder or invalidate any act done in response to such Event of Default or pursuant to such Notice of Sale, and, notwithstanding the continuance in possession of the Security, Beneficiary will be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any Event of Default, including the right to exercise the power of sale; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of an Event of Default and demand for sale, and a written notice of default and election to cause Trustor's interest in the Security to be sold ("Notice of Sale"), which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of Contra Costa County; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing the Secured Obligations. Section 7.4 Foreclosure By Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall deliver to the Trustee the Notice of Sale and shall deposit with Trustee this Deed of Trust which is secured hereby (and the deposit of which will be deemed to constitute evidence that the Secured Obligations are immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. (a) Upon receipt of the Notice of Sale from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Sale as is then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after the lapse of 863\101\1956364.4 14 that amount of time as is then required by law and after recordation of such Notice of Sale as required by law, sell the Security, at the time and place of sale set forth in the Notice of Sale, whether as a whole or in separate lots or parcels or items, as Trustee deems expedient and in such order as it determines, unless specified otherwise by the Trustor according to California Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any matters of facts will be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the unpaid Principal amount of the Note; (ii) all other Secured Obligations owed to Beneficiary under the Loan Documents; (iii) all other sums then secured hereby; and (iv) the remainder, if any, to Trustor. (c) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new Notice of Sale. Section 7.5 Receiver. If an Event of Default occurs and is continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under the Security, and without regard to the then value of the Security or the interest of Trustor therein, may apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers will have all the usual powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and will continue as such and exercise all such powers until the date of confirmation of sale of the Security, unless such receivership is sooner terminated. Section 7.6 Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy will be cumulative and concurrent and will be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. Section 7.7 No Waiver. (a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Event of Default will exhaust or impair any such right, power or remedy, and may not be construed to be a waiver of any such Event of Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. 863\101\1956364.4 15 Beneficiary's express or implied consent to breach, or waiver of, any obligation of the Trustor hereunder will not be deemed or construed to be a consent to any subsequent breach, or further waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, will not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, power or remedies consequent on any Event of Default by the Trustor. (b) If the Beneficiary (i) grants forbearance or an extension of time for the payment or performance of any Secured Obligation, (ii) takes other or additional security or the payment of any sums secured hereby, (iii) waives or does not exercise any right granted in the Loan Documents, (iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents, (v) consents to the granting of any easement or other right affecting the Security, or (vi) makes or consents to any agreement subordinating the lien hereof, any such act or omission will not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor will any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary, will the lien of this Deed of Trust be altered thereby. Section 7.8 Suits to Protect the Security. The Beneficiary has the power to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security and the rights of the Beneficiary as may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the Security thereunder or be prejudicial to the interest of the Beneficiary. Section 7.9 Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, will be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings and for any additional amount that becomes due and payable by the Trustor hereunder after such date. Section 7.10 Waiver. The Trustor waives presentment, demand for payment, notice of dishonor, notice of protest and nonpayment, protest, notice of interest on interest and late charges, and diligence in taking any action to collect any Secured Obligations or in proceedings against the Security, in 863\101\1956364.4 16 connection with the delivery, acceptance, performance, default, endorsement or guaranty of this Deed of Trust. ARTICLE 8 MISCELLANEOUS Section 8.1 Amendments. This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor. Section 8.2 Reconveyance by Trustee. Upon written request of Beneficiary stating that all Secured Obligations have been paid or forgiven, and all obligations under the Loan Documents have been performed in full, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the person or persons legally entitled thereto. Section 8.3 Notices. If at any time after the execution of this Deed of Trust it becomes necessary or convenient for one of the parties hereto to serve any notice, demand or communication upon the other party, such notice, demand or communication must be in writing and is to be served personally or by depositing the same in the registered United States mail, return receipt requested, postage prepaid and (1) if intended for Beneficiary is to be addressed to: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attention: Assistant Deputy Director and (2) if intended for Trustor is to be addressed to: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541 Attention: President With a copy to: Wells Fargo Affordable Housing Community Development Corporation MAC D1053-170 301 S. College Street, 17th Floor Charlotte, NC 28288-0173 Attn: Director of Tax Credit Asset Management 863\101\1956364.4 17 with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Dave Dahl, Esq. Any notice, demand or communication will be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed in the manner herein specified, on the delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either party may change its address at any time by giving written notice of such change to Beneficiary or Trustor as the case may be, in the manner provided herein, at least ten (10) days prior to the date such change is desired to be effective. Section 8.4 Successors and Joint Trustors. Where an obligation created herein is binding upon Trustor, the obligation also applies to and binds any transferee or successors in interest. Where the terms of the Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation will be deemed to be a joint and several obligation of the Trustor and such transferee. Where Trustor is more than one entity or person, all obligations of Trustor will be deemed to be a joint and several obligation of each and every entity and person comprising Trustor. Section 8.5 Captions. The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. Section 8.6 Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity will not affect the balance of the terms and provisions hereof, which terms and provisions will remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, will be considered to have been first paid or applied to the full payment of that portion of the debt that is not secured or partially secured by the lien of this Deed of Trust. Section 8.7 Governing Law. This Deed of Trust is governed by the laws of the State of California. 863\101\1956364.4 18 Section 8.8 Gender and Number. In this Deed of Trust the singular includes the plural and the masculine includes the feminine and neuter and vice versa, if the context so requires. Section 8.9 Deed of Trust, Mortgage. Any reference in this Deed of Trust to a mortgage also refers to a deed of trust and any reference to a deed of trust also refers to a mortgage. Section 8.10 Actions. Trustor shall appear in and defend any action or proceeding purporting to affect the Security. Section 8.11 Substitution of Trustee. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter will be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution is to be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the Property is situated, will be conclusive proof of proper appointment of the successor trustee. Section 8.12 Statute of Limitations. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law. Section 8.13 Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, the Trustee is not obligated to notify any party hereto of a pending sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee is a party unless brought by Trustee. Section 8.14 Tax Credit Provisions. Notwithstanding anything to the contrary contained herein or in any documents secured by this Deed of Trust or contained in any subordination agreement, and to the extent applicable, the Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to the Security encumbered by this Deed of Trust, the following rule contained in 26 U.S.C. Section 42(h)(6)(E)(ii), as amended, applies: For a period of three (3) years from the date of Foreclosure, with respect to an existing tenant of any low-income unit, (i) such tenant may not be subject to eviction or termination of their tenancy (other than for good cause), (ii) nor may such tenant's gross rent with respect to 863\101\1956364.4 19 such unit be increased, except as otherwise permitted under Section 42 of the Internal Revenue Code. Section 8.15 Subject to RAD Use Agreement. This Deed of Trust is in all respects subject to and subordinate in priority to that certain Rental Assistance Demonstration (RAD) Use Agreement to be entered into betw een the U.S. Department of Housing and Urban Development and the Trustor recorded contemporaneously herewith in the Official Records of Contra Costa County. Signature page County Deed of Trust 863\101\1956364.4 20 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. El Cerrito Senior, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its general partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its manager By:____________________ Its:____________________ 863\101\1956364.4 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. A-1 863\101\1956364.4 EXHIBIT A LEGAL DESCRIPTION The land is situated in the State of California, County of Contra Costa, and is described as follows: 863\101\1957955.4 1 RECORDING REQUESTED PURSUANT AND WHEN RECORDED MAIL TO: Contra Costa County Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director No fee for recording pursuant to Government Code Section 27383 __________________________________________________________________________ INTERCREDITOR AGREEMENT Hana Gardens Apartments This Intercreditor Agreement (the "Agreement") is dated December_____, 2016, and is among the City of El Cerrito, a municipal corporation (the "City"), the County of Contra Costa, a political subdivision of the State of California (the "County"), and El Cerrito Senior, L.P., a California limited partnership ("Borrower"), with reference to the following facts: RECITALS A. Defined terms used but not defined in these recitals are as defined in Section 1 of this Agreement. B. Pursuant to a Disposition, Development, and Loan Agreement dated April 23, 2014 between Eden Housing, Inc., a California nonprofit public benefit corporation ("Eden") and the City (the "DDLA"), as amended, which was assigned to Borrower pursuant to an Assignment Agreement dated December______, 2016, Borrower intends to purchase that certain real property located at 10860 San Pablo Avenue, in the City of El Cerrito, County of Contra Costa, State of California, as more particularly described in Exhibit A (the "Property"). Borrower intends to construct sixty-three (63) senior housing units on the Property for rental to extremely low, very low and low income households, including one (1) manager's unit (the "Development"). The Development, as well as all landscaping, roads and parking spaces on the Property and any additional improvements on the Property, are the "Improvements". C. The County is making a loan to Borrower of Six Hundred Twenty-Five Thousand Dollars ($625,000) of Community Development Block Grant funds and One Million Four Hundred Seventy-Five Thousand Dollars ($1,475,000) of Home Investment Partnerships Act Program funds for a combined total loan amount of Two Million One Hundred Thousand Dollars ($2,100,000) (the "County Loan"). The County Loan is evidenced by the following documents (among others), each of even date herewith: (i) Development Loan Agreement by and between Borrower and the County (the "County Loan Agreement"), (ii) Deed of Trust With Assignment of Rents, Security Agreement and Fixture Filing executed by Borrower for the benefit of the 863\101\1957955.4 2 County (the "County Deed of Trust"), and (iii) Promissory Note executed by Borrower for the benefit of the County in the amount of the County Loan (the "County Note"). D. Pursuant to the DDLA the City is making a loan to Borrower in the approximate amount of Three Hundred Thousand Dollars ($300,000) (the "City Loan"). E. Pursuant to the DDLA the percentage of Residual Receipts to be repaid by the Borrower to the City includes the value of the Property at the time of acquisition of the Property by the City which is determined by the City to be Three Million Nine Hundred Thousand Dollars ($3,900,000) (the "City Property Value"). F. In addition to the DDLA, the City Loan is evidenced by the following documents (among others): (i) a Construction and Permanent Deed of Trust With Assignment of Rents and Security Agreement executed by Borrower for the benefit of the City (the "City Deed of Trust"); and (ii) an Amended and Restated Promissory Note executed by Borrower for the benefit of the City in the amount of the City Loan (the "City Note"). G. The City and the County desire to cause the City Deed of Trust and the County Deed of Trust (together, the "Deeds of Trust") to be equal in lien priority. The City and the County also desire to divide (i) the proceeds of any foreclosure, condemnation or insurance claim, (ii) the Lenders' Share of Residual Receipts, and (iii) the Borrower's Shared Portion of Residual Receipts. NOW, THEREFORE, the Parties agree as follows: AGREEMENT 1. Definitions. The following terms have the following meanings: (a) "Adjusted AHSC Loan" means, to the extent less than the full amount of the AHSC HCD Loan is funded, an amount equal to the actual principal amount loaned to Borrower by HCD pursuant to the documents between Borrower and HCD evidencing the AHSC HCD Loan. If the full amount of the AHSC HCD Loan is funded, the Adjusted AHSC Loan is equal to the AHSC HCD Loan. (b) "Adjusted City Loan" means, to the extent less than the full amount of the City Loan is funded, an amount equal to the actual principal amount loaned to Borrower by the City pursuant to the DDLA minus any Special City Loan Payment. If the full amount of the City Loan is funded and no portion repaid as a Special City Loan Payment, the Adjusted City Loan is equal to the City Loan. (c) "Adjusted City Funding" means the sum of the Adjusted City Loan and the City Property Value. (d) "Adjusted County Loan" means, to the extent less than the full amount of the County Loan is funded, an amount equal to the actual principal amount loaned to Borrower by the County pursuant to the County Loan Agreement minus any Special County Loan Payment. If the full amount of the County Loan is funded and no portion repaid as a Special 863\101\1957955.4 3 County Loan Payment, the Adjusted County Loan is equal to the County Loan. (e) "AHSC" has the meaning set forth in Section 1.1(j)(ii). (f) "AHSC HCD Loan" has the meaning set forth in Section 1.1(j)(ii). (g) "Annual County Loan Payment" has the meaning in Section 2(a). (h) "Annual City Loan Payment" has the meaning in Section 2(b). (i) "Annual Operating Expenses" means for each calendar year, the following costs reasonably and actually incurred for operation and maintenance of the Development: i. property taxes and assessments imposed on the Development; ii. debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Development) on the CCRC Loan; iii. on-site service provider fees for tenant social services, provided the County and City have approved, in writing, the plan and budget for such services before such services begin; iv. fees paid to the Issuer with respect to the Bonds; v. payment to HCD of a portion of the accrued interest on the AHSC HCD Loan pursuant to California Code of Regulations, Title 25, Section 7308; vi. property management fees and reimbursements, on–site property management office expenses, and salaries of property management and maintenance personnel, not to exceed amounts that are standard in the industry and which are pursuant to a management contract approved by the County and the City; vii. the Partnership/Asset Fee; viii. fees for accounting, audit, and legal services incurred by Borrower's general partner in the asset management of the Development, not to exceed amounts that are standard in the industry, to the extent such fees are not included in the Partnership/Asset Fee; ix. premiums for insurance required for the Improvements to satisfy the requirements of any lender of Approved Financing; x. utility services not paid for directly by tenants, including water, sewer, and trash collection; xi. maintenance and repair expenses and services; xii. any annual license or certificate of occupancy fees required for 863\101\1957955.4 4 operation of the Development; xiii. security services; xiv. advertising and marketing; xv. cash deposited into the Replacement Reserve Account in the amount set forth in Section 4.2(a) of the County Loan Agreement; xvi. cash deposited into the Operating Reserve Account to maintain the amount set forth in Section 4.2(b) of the County Loan Agreement (excluding amounts deposited to initially capitalize the account); xvii. payment of any previously unpaid portion of Developer Fee (without interest), not to exceed the amount set forth in Section 3.17 of the County Loan Agreement; xviii. extraordinary operating costs specifically approved in writing by the County and the City; xix. payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves, and other ordinary and reasonable operating expenses approved in writing by the County and the City and not listed above. Annual Operating Expenses do not include the following: depreciation, amortization, depletion or other non-cash expenses, initial deposits to capitalize a reserve account, any amount expended from a reserve account, and any capital cost associated with the Development. (j) "Approved Financing" means all of the following loans, grants and equity obtained by Borrower and approved by the County and the City for the purpose of financing the acquisition of the Property and construction of the Development in addition to the County Loan and the City Loan: i. multi-family housing revenue tax exempt bonds in the approximate amount of Twenty-One Million Dollars ($21,000,000) (the "Bonds") issued by the County of Contra Costa (the "Issuer") that are purchased by the Bank and the sale proceeds of which are loaned to Borrower (the "Bank Construction Loan") which will convert to a permanent loan from CCRC in the approximate amount of Six Million Four Hundred Six Thousand Eight Hundred Dollars ($6,406,800) (the "CCRC Loan"); ii. permanent loan of Affordable Housing Sustainable Communities ("AHSC") funds from the California Department of Housing and Community Development ("HCD") in the approximate amount of Five Million Two Hundred Seventy-One Thousand Six Hundred Ninety-Six Dollars ($5,271,696) (the "AHSC HCD Loan"); 863\101\1957955.4 5 iii. IIG and Transit Pass Loan from EDI, composed of Infill Infrastructure Grant Program funds received from HCD in the approximate amount of One Million Three Hundred Ninety-Nine Thousand Five Hundred Forty-Seven Dollars ($1,399,547), and a Twenty-Two Thousand Six Hundred- Eighty Dollar ($22,680.00) portion of the AHSC Transit Related Improvements Grant Program funds from HCD to the City and granted by the City to EDI, for a total loan amount of One Million Four Hundred Twenty-Two Thousand Two Hundred Seventy-Seven Dollars ($1,422,277) (the "EDI Loan"); iv. the Low Income Housing Tax Credit investor equity funds in the approximate amount of Twelve Million Seven Hundred Sixty-Nine Thousand Four Hundred Seventy-Seven Dollars ($12,769,477) (the "Tax Credit Investor Equity") provided by the Investor Limited Partner; and v. the capital contribution from Borrower's general partner in the approximate amount of One Hundred Dollars ($100) (the "GP Capital Contribution"). (k) "Available Net Proceeds" means the result obtained by multiplying the Net Proceeds of Permanent Financing by 0.75. (l) "Bank" means Wells Fargo Bank, N.A. (m) "Bank Construction Loan" has the meaning set forth in Section 1.1(j)(i). (n) "Bonds" has the meaning set forth in Section 1.1(j)(i). (o) "Borrower's Shared Portion of Residual Receipts" means twenty-five percent (25%) of Residual Receipts. (p) "CCRC" means California Community Reinvestment Corporation. (q) "CCRC Loan" has the meaning set forth in Section 1.1(j)(i). (r) "City Additional Prorata Share" means the result obtained by dividing the Adjusted City Funding by the sum of the Adjusted City Funding and the Adjusted County Loan. (s) "City Deed of Trust" has the meaning set forth in Paragraph E of the Recitals. (t) "City Foreclosure Prorata Share" means the result obtained by dividing the then-outstanding Adjusted City Loan by the sum of the then-outstanding Adjusted City Loan and the then-outstanding Adjusted County Loan. (u) "City Loan" has the meaning set forth in Paragraph D of the Recitals. 863\101\1957955.4 6 (v) "City Loan Prorata Percentage" means the result, expressed as a percentage, obtained by dividing the Adjusted City Loan by the sum of the Adjusted County Loan, the Adjusted City Loan, and the Adjusted AHSC HCD Loan. (w) "City Note" has the meaning set forth in Paragraph E of the Recitals. (x) "City Property Value" has the meaning set forth in Paragraph D of the Recitals. (y) "Completion Date" means the date a final certificate of occupancy, or equivalent document is issued by the City to certify that the Development may be legally occupied. (z) "County Additional Prorata Share" means the result obtained by dividing the Adjusted County Loan by the sum of the Adjusted County Loan and the Adjusted City Funding. (aa) "County Deed of Trust" has the meaning set forth in Paragraph C of the Recitals. (bb) "County Foreclosure Prorata Share" means the result obtained by dividing the then-outstanding Adjusted County Loan by the sum of the then-outstanding Adjusted City Loan and the then-outstanding Adjusted County Loan. (cc) "County Loan" has the meaning set forth in Paragraph C of the Recitals. (dd) "County Loan Agreement" has the meaning set forth in Paragraph C of the Recitals. (ee) "County Loan Prorata Percentage" means (i) prior to the date the City Adjusted Loan is paid in full, the result, expressed as a percentage, obtained by dividing the Adjusted County Loan by the sum of the Adjusted County Loan, the Adjusted City Loan, and the Adjusted AHSC HCD Loan, and (ii) after the date the City Adjusted Loan is paid in full, the result, expressed as a percentage, obtained by dividing the Adjusted County Loan by the sum of the Adjusted County Loan and the Adjusted AHSC HCD Loan. (ff) "County Note" has the meaning set forth in Paragraph C of the Recitals. (gg) "DDLA" has the meaning set forth in Paragraph B of the Recitals. (hh) "Deeds of Trust" has the meaning set forth in Paragraph F of the Recitals. (ii) "Default Rate" means a rate of interest equal to the lesser of the maximum rate permitted by law and ten percent (10%) per annum. (jj) "Developer Fee" has the meaning set forth in Section 3.17 of the County Loan Agreement. 863\101\1957955.4 7 (kk) "Development" has the meaning set forth in Paragraph B of the Recitals. (ll) "Eden" has the meaning set forth in Paragraph B of the Recitals. (mm) "EDI" means Eden Development, Inc., a California nonprofit public benefit corporation. (nn) "EDI Loan" has the meaning set forth in Section 1.1(j)(iii). (oo) "Enforcing Party" has the meaning set forth in Section 6(b). (pp) "Fifteen Year Compliance Period" means the fifteen (15)-year compliance period as described in Section 42(i)(1) of the Internal Revenue Code of 1986, as amended. (qq) "Final Cost Certification" means the Final Cost Certification Sources and Uses of Funds prepared by Borrower for the Development that (1) Borrower submits to the California Tax Credit Allocation Committee, and (2) has been prepared using generally accepted accounting standards in effect in the United States of America from time to time, consistently applied. (rr) "Final Development Cost" means the total of the cost of acquisition and construction of the Development as shown on the Final Cost Certification. (ss) "Foreclosure Net Proceeds" means the proceeds that result from a foreclosure, or any other action, whether judicial or non-judicial, less (i) all amounts paid to any senior lien holder, and (ii) expenses incurred by a lender that is a Party to this Agreement in connection with such foreclosure or other action. (tt) "GP Capital Contribution" has the meaning set forth in Section 1(j)(v). (uu) "Gross Revenue" means for each calendar year, all revenue, income, receipts, and other consideration actually received from the operation and leasing of the Development. Gross Revenue includes, but is not limited to: (i) all rents, fees and charges paid by tenants; (ii) Section 8 payments and other rental or operating subsidy payments received for the dwelling units; (iii) deposits forfeited by tenants; (iv) all cancellation fees; (v) price index adjustments and any other rental adjustments to leases or rental agreements; (vi) net proceeds from vending and laundry room machines; 863\101\1957955.4 8 (vii) the proceeds of business interruption or similar insurance not paid to senior lenders; (viii) the proceeds of casualty insurance not used to rebuild the Development and not paid to senior lenders; and (ix) condemnation awards for a taking of part or all of the Development for a temporary period. Gross Revenue does not include tenants' security deposits, loan proceeds, capital contributions or similar advances. (vv) "HCD" has the meaning set forth in Section 1(j)(ii). (ww) "Improvements" has the meaning set forth in Paragraph B of the Recitals. (xx) "Investor Limited Partner" means Wells Fargo Affordable Housing Community Development Corporation, a North Carolina corporation, its successors and assigns. (yy) "Issuer" has the meaning set forth in Section 1.1(j)(i). (zz) "Lenders' Share of Residual Receipts" means fifty percent (50%) of Residual Receipts. (aaa) "Net Proceeds of Permanent Financing" means the amount by which Permanent Financing exceeds the Final Development Costs. (bbb) "Parties" means the City, the County, and Borrower. (ccc) "Partnership Agreement" means the agreement between Borrower's general partner and the Investor Limited Partner that governs the operation and organization of Borrower as a California limited partnership. (ddd) "Partnership/Asset Fee" means (i) partnership management fees (including any asset management fees) payable pursuant to the Partnership Agreement to any partner or affiliate of Borrower or any affiliate of a partner of Borrower, if any, during the Fifteen Year Compliance Period, and (ii) after expiration of the Fifteen Year Compliance Period, asset management fees payable to Borrower, in the amounts approved by the County as set forth in Section 3.18 of the County Loan Agreement. (eee) "Permanent Financing" means the sum of the following amounts: (i) the Adjusted County Loan; (ii) the Adjusted City Loan; (iii) the Adjusted AHSC HCD Loan; (iv) the CCRC Loan; (v) the Tax Credit Investor Equity; (vi) the EDI Loan; and (vii) the GP Capital Contribution. 863\101\1957955.4 9 (fff) "Property" has the meaning set forth in Paragraph B of the Recitals. (ggg) "Residual Receipts" means for each calendar year, the amount by which Gross Revenue exceeds Annual Operating Expenses. (hhh) "Special City Loan Payment" has the meaning set forth in Section 3(b). (iii) "Special County Loan Payment" has the meaning set forth in Section 3(a). (jjj) "Statement of Residual Receipts" means an itemized statement of Residual Receipts. (kkk) "Tax Credit Investor Equity" has the meaning set forth in Section 1(j)(iv). (lll) "Term" means the period of time that commences on the date of this Agreement, and expires, unless sooner terminated in accordance with this Agreement, on the fifty-fifth (55th) anniversary of the Completion Date; provided, however, if a record of the Completion Date cannot be located or established, the Term will expire on the fifty-seventh (57th) anniversary of this Agreement. 2. Annual Payments to County and City. (a) County Loan. i. Commencing on June 1, 2019, and on June 1 of each year thereafter during the Term, Borrower shall make a loan payment in an amount equal to the sum of (1) the County Loan Prorata Percentage of the Lenders' Share of Residual Receipts and (2) the County Additional Prorata Share multiplied by Borrower's Shared Portion of Residual Receipts (each such payment, an "Annual County Loan Payment") until the County Loan is paid in full. A numerical example of the methodology to be used to calculate the Annual County Loan Payment is shown in Exhibit B attached hereto. In the event of a conflict between the text of this Section 2(a) and Exhibit B, the text of this Section 2(a) will prevail. The County shall apply all Annual County Loan Payments to the County Loan as follows: (1) first, to accrued interest, and (2) second, to principal. ii. Borrower shall repay the County Loan pursuant to the terms of the County Loan Agreement and the County Note. In the event of any conflict between the repayment terms and provisions of the County Loan Agreement and this Agreement, the provisions of this Agreement apply. The County may not consent to any amendment or waiver of the terms of the County Loan Agreement or the County Note if such amendment or waiver could reasonably be deemed to materially adversely affect the City, without the City's prior written approval, which the City may withhold in its sole discretion. (b) City Loan. i. Commencing on June 1, 2019, and on June 1 of each year thereafter during the Term, Borrower shall make a loan payment in an amount equal to the sum of (1) the City Loan Prorata Percentage of the Lenders' Share of Residual Receipts, and (2) the 863\101\1957955.4 10 City Additional Prorata Share multiplied by Borrower's Shared Portion of Residual Receipts (each such payment, an "Annual City Loan Payment") until the City Loan is paid in full. A numerical example of the methodology to be used to calculate the Annual City Loan Payment is shown in Exhibit B attached hereto. In the event of a conflict between the text of this Section 2(b) and Exhibit B, the text of this Section 2(b) will prevail. The City shall apply all Annual City Loan Payments as follows: (1) first, to accrued interest, and (2) second, to principal for the City Loan. ii. Borrower shall repay the City Loan pursuant to the terms of the DDLA and the City Note. In the event of any conflict between the repayment terms of the DDLA and this Agreement, the provisions of this Agreement apply. The City may not consent to any amendment or waiver of the terms of the DDLA or the City Note, if such amendment or waiver could reasonably be deemed to materially adversely affect the County, without the County's prior written approval, which the County may withhold in its sole discretion. 3. Special Repayments from Net Proceeds of Permanent Financing. (a) To the extent consistent with the regulations applicable to the AHSC HCD Loan, no later than ten (10) days after the date Borrower receives its final capital contribution from the Investor Limited Partner, Borrower shall pay to the County as a special repayment of the County Loan, an amount equal to the result obtained by multiplying the County Additional Prorata Share by the Available Net Proceeds (the "Special County Loan Payment"). (b) To the extent consistent with the regulations applicable to the AHSC HCD Loan, no later than ten (10) days after the date Borrower receives its final capital contribution from the Investor Limited Partner, Borrower shall pay to the City as a special repayment of the City Loan, an amount equal to the result obtained by multiplying the City Additional Prorata Share by the Available Net Proceeds (the "Special City Loan Payment"). (c) No later than one hundred eighty (180) days following completion of construction of the Development, Borrower shall submit to the County and the City a preliminary calculation of the Net Proceeds of Permanent Financing and a draft of the Final Cost Certification. The County and the City shall approve or disapprove Borrower's determination of the amount of the Net Proceeds of Permanent Financing in writing within thirty (30) days of receipt. If Borrower's determination is disapproved by the County or the City, Borrower shall re- submit documentation to the County and the City until approval of the County and the City is obtained. 4. Reports and Accounting of Residual Receipts. (a) Annual Reports. In connection with the Annual County Loan Payment and the Annual City Loan Payment, Borrower shall furnish to the City and the County: i. The Statement of Residual Receipts for the relevant period. The first Statement of Residual Receipts will cover the period that begins on January 1, 2018 and ends on December 31st of that same year. Subsequent statements of Residual Receipts will cover the twelve-month period that ends on December 31 of each year; 863\101\1957955.4 11 ii. A statement from the independent public accountant that audited the Borrower's financial records for the relevant period, which statement must confirm that Borrower's calculation of the Lender's Share of Residual Receipts and Borrower's Shared Portion of Residual Receipts is accurate based on Operating Income and Annual Operating Expenses; and iii. Any additional documentation reasonably required by the County or the City to substantiate Borrower's calculation of Lender's Share of Residual Receipts and Borrower's Shared Portion of Residual Receipts. (b) Books and Records. Borrower shall keep and maintain at the principal place of business of Borrower set forth in Section 11 below, or elsewhere with the written consent of the County and the City, full, complete and appropriate books, record and accounts relating to the Development, including all books, records and accounts necessary or prudent to evidence and substantiate in full detail Borrower's calculation of Residual Receipts and disbursements of Residual Receipts. Borrower shall cause all books, records and accounts relating to its compliance with the terms, provisions, covenants and conditions of this Agreement to be kept and maintained in accordance with generally accepted accounting principles consistently applied, and to be consistent with requirements of this Agreement, which provide for the calculation of Residual Receipts on a cash basis. Borrower shall cause all books, records, and accounts to be open to and available for inspection by the County and the City, their auditors or other authorized representatives at reasonable intervals during normal business hours. Borrower shall cause copies of all tax returns and other reports that Borrower may be required to furnish to any government agency to be open for inspection by the County and the City at all reasonable times at the place that the books, records and accounts of Borrower are kept. Borrower shall preserve records on which any statement of Residual Receipts is based for a period of not less than five (5) years after such statement is rendered, and for any period during which there is an audit undertaken pursuant to subsection (c) below then pending. (c) County and City Audits. i. The receipt by the County or the City of any statement pursuant to subsection (a) above or any payment by Borrower or acceptance by the County or the City of any loan repayment for any period does not bind the County or the City as to the correctness of such statement or such payment. The County or the City or any designated agent or employee of the County or the City is entitled at any time to audit the Residual Receipts and all books, records, and accounts pertaining thereto. The County and/or the City may conduct such audit during normal business hours at the principal place of business of Borrower and other places where records are kept. Immediately after the completion of an audit, the County or the City, as the case may be, shall deliver a copy of the results of the audit to Borrower. ii. If it is determined as a result of an audit that there has been a deficiency in a loan repayment to the County and/or the City, then such deficiency will become immediately due and payable, with interest at the Default Rate from the date the deficient amount should have been paid. In addition, if the audit determines that Residual Receipts have been understated for any year by the greater of (i) $2,500, and (ii) an amount that exceeds five percent (5%) of the Residual Receipts, then, in addition to paying the deficiency with interest, 863\101\1957955.4 12 Borrower shall pay all of the costs and expenses connected with the audit and review of Borrower's accounts and records incurred by the County and/or the City. 5. Deeds of Trust. Notwithstanding the fact that the City Deed of Trust may be recorded prior to the County Deed of Trust or that the County Deed of Trust may be recorded prior to the City Deed of Trust, the Deeds of Trust are equal in lien priority. 6. Notice of Default. (a) The County and the City shall each notify the other promptly upon declaring a default or learning of the occurrence of any material event of default, or any event which with the lapse of time would become a material event of default, under its respective loan documents for the City Loan and the County Loan. (b) The City and the County agree not to make a demand for payment from Borrower or accelerate the City Note or the County Note, as the case may be, or commence enforcement of any of the rights and remedies under the City Deed of Trust or the County Deed of Trust, as the case may be, until the date that is five (5) business days following delivery of written notice by the Party enforcing its rights (the "Enforcing Party") to the other Party stating that a "default" (as defined in the relevant Deed of Trust) has occurred and is continuing and that the Enforcing Party is requesting the other Party's assistance in foreclosure pursuant to Section 7. 7. Cooperation in Foreclosure. (a) If there is a default under the City Loan and/or County Loan, after expiration of any applicable cure periods, the party who is the lender on the defaulted loan shall cooperate with the other lender that is a Party to this Agreement to coordinate any foreclosure proceedings or other appropriate remedies. (b) Neither the County nor the City may contest the validity, perfection, priority, or enforceability of the lien granted to the other Party by a deed of trust secured by the Property. Notwithstanding any failure of a Party to perfect its lien on the Property or any other defect in the security interests or obligations owing to such Party, the priority and rights as between the lenders that are Parties to this Agreement are as set forth in this Agreement. 8. Foreclosure Proceeds. If there is a foreclosure, or any other action, whether judicial or nonjudicial, under any or both of the Deeds of Trust (including the giving of a deed in lieu of foreclosure), the proceeds resulting from such foreclosure or action will be first used to pay (i) all amounts paid to any senior lien holder, and (ii) expenses incurred by the County, the City, or both, in connection with such foreclosure or other action. After such payments (i) the City is entitled to the result obtained by multiplying the City Foreclosure Prorata Share by the Foreclosure Net Proceeds, up to the amount of the unpaid Adjusted City Loan, and (ii) the County is entitled to the result obtained by multiplying the County Foreclosure Prorata Share by the Foreclosure Net Proceeds, up to the amount of the unpaid Adjusted County Loan. 9. Insurance and Condemnation Proceeds. If, as a result of having made the City Loan and the County Loan, the City and County are entitled to insurance or condemnation proceeds, they will share such proceeds as follows: (i) the City is entitled the result obtained by 863\101\1957955.4 13 multiplying the City Foreclosure Prorata Share by the available proceeds, and (ii) the County is entitled to the result obtained by multiplying the County Foreclosure Prorata Share by the available proceeds. 10. Title to Property. If, as a result of having made the City Loan and the County Loan, either the City or the County is entitled to title to the Property as a consequence of Borrower's default, then title is to be held in tenancy in common by the City and the County with the City owning the City Additional Prorata Share and the County owning the County Additional Prorata Share. Subsequent decisions to hold or sell the Property will be made by joint decision of the City and the County. 11. Notices. All notices required or permitted by any provision of this Agreement must be in writing and sent by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows: City: City of El Cerrito 10890 San Pablo Avenue El Cerrito, Ca 94530 Attn: City Manager County: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attn: Assistant Deputy Director Borrower: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541 Attention: President Investor Limited Partner: Wells Fargo Affordable Housing Community Development Corporation MAC D1053-170 301 S. College Street, 17th Floor Charlotte, NC 28288-0173 Attn: Director of Tax Credit Asset Management with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attn: Dave Dahl, Esq. 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 as provided in this Section. 863\101\1957955.4 14 Receipt will be deemed to have occurred on the date marked on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable). 12. Titles. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and are to be disregarded in interpreting any part of the Agreement's provisions. 13. California Law. This Agreement is governed by the laws of the State of California. 14. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 15. Legal Actions. If any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach of this Agreement, then the Party prevailing in any such action shall be entitled to recover against the Party not prevailing all reasonable attorneys' fees and costs incurred in such action. 16. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the distribution of proceeds upon foreclosure of or other remedies under the Deeds of Trust. 17. Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 18. Amendments. This Agreement may not be modified except by written instrument executed by and amongst the Parties. [Remainder of Page Left Intentionally Blank] Signature Page Intercreditor Agreement 863\101\1957955.4 15 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. BORROWER: El Cerrito Senior, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its general partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its manager By:____________________ Its:__________________ Approved as to form: SHARON L. ANDERSON County Counsel By: Kathleen Andrus Deputy County Counsel COUNTY: COUNTY OF CONTRA COSTA, a political subdivision of the State of California By: __________________ John Kopchik Director, Department of Conservation and Development CITY: CITY OF EL CERRITO By: __________________ Name:___________________ Its:____________________ 863\101\1957955.4 16 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 863\101\1957955.4 17 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 863\101\1957955.4 18 STATE OF CALIFORNIA ) ) COUNTY OF __________________ ) On ____________________, before me, ___________________________, Notary Public, personally appeared ______________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ______________________________________ Name: ______________________________ Notary Public A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. A-1 863\101\1957955.4 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY B-1 863\101\1957955.4 EXHIBIT B COUNTY/CITY RESIDUAL RECEIPTS NUMERICAL EXPLANATION RECOMMENDATION(S): ACCEPT the report from the Employment and Human Services Department on Human Trafficking, Commercially Sexually Exploited Children, and the Family Justice Centers. FISCAL IMPACT: None. BACKGROUND: On January 6, 2015, the Board approved referring oversight to the Family and Human Services Committee (F&HS) on the Family Justice Centers and Commercially Sexually Exploited Children initiatives. This became F&HS Referral No. 111. On June 8, 2015, the Family and Human Services Committee received and approved the first report from the Employment and Human Services Department on the Zero Tolerance for Domestic Violence Initiative regarding Human Trafficking - Commercially Sexually Exploited Children and the Family Justice Centers. On July 7, 2015 the Board of Supervisors received and approved this report as recommended by F&HS. On November 14, 2016, F&HS heard and approved the 2016 update report on Referral No. 111 (attached) for Board review and approval. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Enid Mendoza, (925) 335-1039 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.106 To:Board of Supervisors From:FAMILY & HUMAN SERVICES COMMITTEE Date:December 6, 2016 Contra Costa County Subject:F&HS Referral No. 111 - Family Justice Center and Commercially Exploited Children BACKGROUND: (CONT'D) CONSEQUENCE OF NEGATIVE ACTION: The Board will not receive the annual report. CHILDREN'S IMPACT STATEMENT: ATTACHMENTS FJC, CSEC and Human Trafficking Report 40 Douglas Drive, Martinez, CA 94553 • (925) 313-1500 • Fax (925) 313-1575 • www.ehsd.org To: Family and Human Services Committee Contra Costa County Board of Supervisors Date: November 14, 2016 CC: From: Devorah Levine, Assistant Director Employment and Human Services Department Subject: Update on Human Trafficking and Commercially Sexually Exploited Children & Update on Family Justice Centers Creating A System of Care for All Victims of Human Trafficking Since June 2014, the Zero Tolerance for Human Trafficking Coalition and its partners have continued to build and advocate for a comprehensive system of care. Over 240 victims of human trafficking (through a Federal Office of Victims of Crime grant) have received services. Yet human trafficking is highly under reported and data is hard to come by. Trafficking, by nature, is a hidden crime and victims seldom self-identify. A limited snapshot of data, gathered from six partner agencies including Community Violence Solutions, STAND! for Families Free of Violence, and Calli House is presented below. While awareness of sex trafficking increased in Contra Costa County in the last decade, awareness about labor trafficking and male victims is still lacking. This is represented in available data, which reflects mostly female victims of sex trafficking. 22 206 11 2 Labor Trafficking Sex Trafficking Sex and Labor Trafficking Unknown Type of Trafficking 75% 25% Age Adults Minors M E M O R A N D U M Kathy Gallagher, Director 1 Strengthening a Coalition In order to effectively serve victims, address gaps, and increase both awareness and collaboration, the Zero Tolerance for Domestic Violence Initiative re-structured its Human Trafficking Coalition to better address all aspects of trafficking and partnered closely with Child & Family Services to develop policies and protocols specifically for CSEC. In April 2016 the Coalition restructured and formalized its operations. These changes were made in order to improve outcomes, increase accountability, formalize participation, and ensure alignment with values. 14% 86% Citizenship Status Foreign National US Citizen/LPR 218 18 5 Female Male Transgender Self Identified Gender 2 The committees include: Executive Committee Goals of this committee include: organize, facilitate, schedule and run coalition meetings; create and manage clear, consistent and coherent messaging about the Coalition and its efforts and; oversee, hold accountable, and provide guidance to committee chairs and members. Outreach, Education and Awareness Committee Goals of this committee include: increasing public awareness and understanding of human trafficking in Contra Costa County; creating, coordinating and implementing county-wide outreach campaigns; managing standards of training; and tracking trainings and evaluations of trainings throughout the County Protocol, Policy and Data Committee Goals of this committee include: spearheading best practices at the leadership level of County agencies and partner organizations; making policy and legislative recommendations to County (and State) government officials; developing improved data systems; and collecting and analyzing data for trends, gaps, and patterns. Multi-Disciplinary Team Case Review Committee In April 2016 Contra Costa County launched its first Human Trafficking Multidisciplinary Team (MDT) to address all forms of human trafficking including, but not limited to, CSEC. The MDT meets monthly at Contra Costa County's Family Justice Centers to review complex human trafficking cases and provide support and resources to help survivors and their families meet their goals. The Human Trafficking MDT has three major goals: 1. Increase services and timely safety planning to survivors of human trafficking, 2. Increase knowledge for MDT partners and staff about services available for survivors and 3. Increase coordination and collaboration among MDT partners. The MDT is well attended by multiple law enforcement agencies, District Attorney, Probation, service providers/NGO and public/behavioral health representatives. Meetings are engaging and participants leave with immediate resources and referrals for cases. For example: in one case discussion, mental health services were expressed as a need and a local community agency was able to meet with the client the next day to provide such services. Other examples of direct connection and collaboration on MDT cases include legal support, placement support, and job training resources. Participants also report feeling more connected to other services and agencies, as well as an increased knowledge and understanding of resources available to clients. Law Enforcement and Investigations Committee The District Attorney’s Office began planning for a law enforcement task force in spring 2016. Objectives for this committee are: increase collaboration across law enforcement agencies on investigations and increase multi-disciplinary approaches to combatting human trafficking 3 Responding to Commercially Sexually Exploited Children CSE-IT Screening Tool As a Tier II County, Contra Costa Children & Family Services (CFS) began developing and implementing community wide and Child Welfare specific responses to the commercial sexual exploitation of dependent minors and human trafficking victims as outlined and mandated in SB 855 and SB 794 in spring of 2015. To assist in identifying CSEC dependent children, CFS partnered with West Coast Children Clinic to pilot their Commercially Sexual Exploitation Identification Tool (CSE-IT) from approximately November 1, 2015 through March 31, 2016. The Permanency and Transition Units, who work with older youth, administered the tool for all youth ten years and older. From May to October of 2015, 135 youth were screened. 37% of those youth were noted as possible concern, or clear concern, in regards to commercial sexual exploitation. CFS has contracted with West Coast Children Clinic to use the CSE-IT in case-carrying units and with the Hotline/Screening Unit. Training has begun (including a Train the Trainer, held in August) and a full rollout in all divisions is anticipated by the end of 2016. Partnership between CFS & Community Violence Solutions To address the unique and critical needs associated with CSEC, CFS contracted with Community Violence Solutions (CVS) and Catholic Charities. CVS works county wide to provide case management support to CFS families and CSE children and youth. Catholic Charities is providing clinical Path II services to families and CSE children and youth who do not have an open Child Welfare case but are in need of services. CFS will continue to develop and implement developmentally appropriate, trauma informed, culturally relevant programs and services to address CSE children, youth and their families. Developing Trauma Informed Approaches In addition to utilizing best practice responses for our CSE children, youth and families, CFS plans to implement trauma informed approaches for delivery of services among our Child Welfare Social Workers and support staff. CFS is in the process of developing Sanctuary Institute practices. The Sanctuary® Model is a blueprint for clinical and organizational change which, at its core, promotes safety and recovery from adversity through the active creation of a trauma-informed community. The model, based on a recognition that trauma is pervasive in the experience of human beings, forms the basis for the Sanctuary Model's focus not only on the people who seek treatment, but equally on the people and systems who provide that treatment. CFS CSEC Policy The development of the CSEC Policy, which includes specific child welfare practices and responses to CSE children and youth, is in process. A CFS Leadership Team meets monthly with a workgroup whose participants include Child Welfare social workers, supervisors, and support staff, as well as a Parent Partner, a drug and alcohol Early Interventionist, and a Domestic Violence Liaison and Staff Development. The purpose of the workgroup is to provide the Leadership Team consultation and feedback in the development of CSEC policies and practices. In addition, an attorney from the Office of County Counsel attended the CSEC Workgroup to provide updated training on the changes made to W&I Code 300b (2). 4 Policy development for CSEC is being completed in phases. To date, a draft Hotline/Screening and Emergency Response policy and practice have been completed. Once approved in the coming months training and field testing will begin. The next phases of CSEC policy and program development include our Permanency and Transition Units followed by our Court and Continuing Services Units. We anticipate that the full CSEC Policy will be developed, field tested county wide, and published in final form by June 2017. Lastly, in collaboration with our Continuum of Care Reform Initiative, we are developing a model for the Child and Family Team Meetings that will address children and families exposed to commercial sexual exploitation. This model will be in place on January 1, 2017. In the meantime, the Leadership Team provides ongoing case consultation to Social Workers and Supervisors. The team continues attending Unit meetings, Division meetings and CFS leadership meetings to inform CFS staff of our progress as well as present updated information on service delivery options. We continue to provide information and support to encourage Social Workers to nominate CSE children and youth to the CSEC MDT. In order to build a fully robust and complete system of care for CSEC within the Child Welfare system, there needs to be full time staff dedicated to the issue and program. We are exploring our options to accomplish this given our resources. Development of Contra Costa Family Justice Alliance Recently, Zero Tolerance led and completed a planning process to establish a network of Family Justice Centers, now known as the Contra Costa Family Justice Alliance. The Alliance provides a formalized structure for shared governance and sustainability of the Contra Costa Family Justice Centers. There are currently two Centers: the West Center in Richmond started as a pilot in 2011 and moved to its permanent site in June of 2015; and the Central Center in Concord opened its doors in March of 2015. Planning for a third center to serve victims of violence and their families in the eastern regions of the county is underway. Family Justice Center accomplishments to date: People Served Between October 1, 2015 and September 30, 2016, the Family Justice Centers provided services to 1,756 individuals who experienced interpersonal violence, exceeding our goal of 1,500 people. Services impacted 1,440 children living with these clients. We provided comprehensive and integrated services while working together with 17 on-site partners at the West Center and 19 partners at the Central Center. On-site partners include 7 law enforcement partners, 2 public agencies and 20 community based organizations. In 2016, FJC added critical services in response to our clients’ needs. In partnership with RotaCare Richmond, we offer free medical services at the West Center. Through Lawyers for Family Justice, we provide free or low cost legal services to clients. Our newest on-site partner is COPE Family Support Center which provides evidence-based Triple P parenting classes at our West Center. 5 Demographics of our clients are as follows: • 76% of our clients are between ages 25 and 59; 10% are between 18 and 24; and 9% over 60. • 40% of our clients are Latino, 22% White, 18% African American, and 8% Asian. • 80% of our clients seek services related to domestic violence, 12% sexual assault, 7% child abuse and 5% elder abuse. • 65% report monthly income of $2,000 or less. • 91% of our clients are female. • 17% of our clients have no health insurance, and 40% are on MediCal or emergency MediCal (undocumented). • 16% reported that they are disabled. • 25% do not speak English. Our work at the Family Justice Center is so gratifying because our clients inspire us with their determination, courage and hope. One recent case highlights the effectiveness of our one stop model: Charlotte came to us after spending three weeks in the hospital with multiple rib fractures inflicted by her boyfriend. While at the hospital, she met with a police detective (who works at our Center) who encouraged her to come to our Center. Charlotte met with a Navigator, who connected her to 5 different resources: she obtained help in getting a civil restraining order through one of our attorneys; was connected to a domestic violence advocacy partner who offers support groups; applied for public benefits; obtained information about the criminal prosecution process; and started the Victims of Crime compensation process. Impact The intended outcomes of our work are demonstrated in three areas: coordinated seamless services for victims of interpersonal violence (IPV); capacity building and partnership support; and building supportive and knowledgeable community. Coordinate Integrated Services We organize our services into two groups: crisis support and long term safety. Crisis support services are coordinated through our Navigators, who connect clients to services they need to leave their abusive situations or deal with their present crisis. After dealing with crisis, we offer services to get our clients to long term safety and independence by working on four domains: health, education and training, wealth and community. • The number of IPV clients served (1,756) increased, compared to the previous one- year period. • We expanded our partnership by adding more on and off site partners. • Out of the 778 clients who filled out client survey, 96% were satisfied with the services, 98% felt safe and comfortable at the Center, and 98% would recommend the Center to a friend in need. • Per the Concord police department, domestic violence related assaults went down by 20 percent while reports of domestic violence restraining orders (DVRO) went up by 20%. The latter indicates that victims are more knowledgeable about DVRO’s and more readily report DVRO violations. • Our Women INspired to Grow and Succeed (WING) program completed 2 6-week series with 19 participants. Each participant created her own resume. Each received a 6 library card. 3 became Family Justice Center clients, and 1 became a Community Fellow after a rigorous selection process. Capacity Building and Partnership Support Our capacity building and partnership support strategy includes monthly multidisciplinary team (MDT) case reviews of high danger domestic violence and human trafficking cases and law enforcement training coordination. In addition, through the Family Justice Institute, we offer trainings and workshops to educate service providers and the public about issues related to IPV. • Of the 33 partners who completed partner surveys in July 2016, 78% stated that they could connect clients to more resources, compared to 68% who shared that view in July 2015. 90% stated that they understood our shared vision and how their organization contributed to it, and 87% felt a sense of community at the Center. • Each month, about 20 agencies participate in the DV MDT meeting and review 2 to 4 cases per meeting. Of the reviewed cases, 95% of victims were women, 90% had children and 50% were still married to their abusers. On average, each victim was connected to 4 different resources during the meeting. 10 out of 11 partners surveyed said that they learned something new by attending the DV MDT, and 55% reported that their victim was connected to another partner agency as a result of the DV MDT. • In one year, the Family Justice Institute offered 13 workshops, attended by 341 individuals. We developed these workshops in response to training needs identified by our partners. The topics include IPV 101, Human Trafficking 101, child abuse mandating reporting, elder abuse and DV restraining orders, cycles of violence and supporting LGBTQ survivors. Community Building We strive to support resident-centered and community-based prevention strategies. We aim to engage residents and foster their ownership of the Family Justice Center, build on community assets, and improve connections among residents, public agencies and non-profit organizations. Our Community Fellowship Program has advanced this approach, engaging 10 local resident survivors with leadership development training and opportunities for 10 months. In turn, our Community Fellows have brought community input and survivor insight to our work. They have been involved in every facet of our work and have made significant contributions. Here are three examples: • Fellows noticed that children sitting in waiting room were grabbing our flyers and drawing all over them. At their suggestion, we now have coloring paper and markers that we provide to children waiting in the lobby. • Fellows identified as one deterrent to obtaining services the fear that if parents report domestic violence their kids will be automatically taken away. This inspired a Family Justice Institute training in January where experts from Children and Family Services and Legal Aid Society Juvenile Dependency Program walked attendees through the CFS process. • Fellows have shared that the reason more people don’t come into our Center is that many families need the support and contribution from everyone in the family, and that “striking out on one’s own” many not be the answer for everyone. One fellow gave examples from her own personal experience about how her marriage has grown and changed over time and wonders why there is not more support for intact families to gain skills in improved family relationships and communication. This feedback 7 has impacted the design of this year’s Innovations Conference on the theme of Restorative Justice. We also host monthly Project Connect gatherings, intended to build community, offer learning opportunities and share stories. 143 individuals, many of them our current or former clients, have come together for Project Connect. 8 RECOMMENDATION(S): APPROVE and AUTHORIZE the Employment & Human Services Director, or designee, to seek reimbursement from California Department of Education in an amount not to exceed $3,352, to maintain Child Days of Enrollment during emergency closures at Richmond College Prep Preschool, Las Deltas Children's Center, and Contra Costa College Children's Center during the 2015-16 fiscal year. FISCAL IMPACT: Approval of this board order will allow the County to maintain Child Days of Enrollment for the 2015-16 fiscal year. This will preserve revenue of $3,352 for fiscal year 2015-16 from California Department of Education. BACKGROUND: During fiscal year 2015-16, the County childcare centers, Contra Costa College Children's Center and Las Deltas, experienced a single day of emergency closure due to circumstances beyond their control. On October 14, 2016, an early morning power outage occurred that was APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: CSB (925) 681-6381 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Nelly Escobar, Sung Kim, Ressie Dayco C.107 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Acknowledgement of Emergency Closures of Childcare Sites during 2015-16 fiscal year BACKGROUND: (CONT'D) not immediately resolved, causing the closure of Contra Costa College Center and Las Deltas Center. Both centers were without power for the day for health and safety reasons. The closure affected 21 children at Contra Costa College and 30 children at Las Deltas. Also during this fiscal year, one of the department childcare partners, Richmond College Prep Preschool, also experienced a single day of emergency closure. On August 17, 2016, an underground water pipe that runs along the side of the building was found leaking fast running water, a water shut off was required to complete repairs. In order to prevent a loss of funds during this period, the County has the option to submit a Board Order to the State in order to maintain childcare fund reimbursement for the impacted days of closure. This is allowable as per California Department of Education, Child Development Management Bulletin 10-09 "Reduced Days of Operation or Attendance Due to Emergency Conditions." CONSEQUENCE OF NEGATIVE ACTION: If not approved, the County will lose $3,352 in potential revenue. CHILDREN'S IMPACT STATEMENT: The Employment & Human Services Department Community Services Bureau supports three of Contra Costa County’s community outcomes - Outcome 1: “Children Ready for and Succeeding in School,” Outcome 3: “Families that are Economically Self-sufficient,” and, Outcome 4: “Families that are Safe, Stable, and Nurturing.” These outcomes are achieved by offering comprehensive services, including high quality early childhood education, nutrition, and health services to low-income children throughout Contra Costa County. ATTACHMENTS Management Bulletin CSB Childcare Center closures CSB Childcare Partner closure Center Classroom Date # Children Enrolled Contract Closure Date Richmond College Prep Room 1 PM 8/15/2016 21 CSPP 8/17/2016 Richmond College Prep Room 1 PM 8/16/2016 22 CSPP 8/17/2016 Center Classroom Date # Children Attend Contract Closure Date Las Deltas Room 1 10/07/2016 14 CCTR 10/14/2016 Las Deltas Room 1 10/10/2016 14 CCTR 10/14/2016 Las Deltas Room 1 10/11/2016 14 CCTR 10/14/2016 Las Deltas Room 1 10/12/2016 14 CCTR 10/14/2016 Las Deltas Room 1 10/13/2016 14 CCTR 10/14/2016 Center Classroom Date # Children Attend Contract Closure Date Las Deltas Room 2 10/07/2016 16 CSPP 10/14/2016 Las Deltas Room 2 10/10/2016 16 CSPP 10/14/2016 Las Deltas Room 2 10/11/2016 16 CSPP 10/14/2016 Las Deltas Room 2 10/12/2016 16 CSPP 10/14/2016 Las Deltas Room 2 10/13/2016 16 CSPP 10/14/2016 Center Classroom Date # Children Attend Contract Closure Date Contra Costa College Room 1 10/07/2016 21 CCTR 10/14/2016 Contra Costa College Room 1 10/10/2016 21 CCTR 10/14/2016 Contra Costa College Room 1 10/11/2016 21 CCTR 10/14/2016 Contra Costa College Room 1 10/12/2016 21 CCTR 10/14/2016 Contra Costa College Room 1 10/13/2016 21 CCTR 10/14/2016 RECOMMENDATION(S): APPROVE amended Conflict of Interest Code for the San Ramon Valley Fire Protection District ("District"). FISCAL IMPACT: None. BACKGROUND: The District has amended the list of Designated Positions of it Conflict of Interest Code and submitted the revised list, attached as Exhibit A, to the Board for approval pursuant to Government Code section 87306 and 87306.5. The revised list includes the deletion and addition of positions designated to file conflict of interest statements to reflect the District's current organizational structure. These changes are shown on the attached strike-out version. (See Exhibit B) CONSEQUENCE OF NEGATIVE ACTION: None. CHILDREN'S IMPACT STATEMENT: Not Applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Cynthia Schwerin, Deputy County Counsel, (925) 335-1800 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Cynthia Schwerin, Deputy County Counsel, David Twa, Clerk of the Board of Supervisors, Paige Meyer, Fire Chief, SRVFPD C.108 To:Board of Supervisors From:Sharon L. Anderson, County Counsel Date:December 6, 2016 Contra Costa County Subject:Conflict of Interest Code for the San Ramon Valley Fire Protection District ATTACHMENTS Ex. A - SRVFPD COI Code Ex. B - SRVFPD COI Code STRIKEOUT RECOMMENDATION(S): APPROVE amended Conflict of Interest Code for the Moraga-Orinda Fire Protection District of Contra Costa County ("District"), including the list of designated positions. FISCAL IMPACT: None. BACKGROUND: The District has amended its Conflict of Interest Code and submitted the revised code, attached as Exhibit A, to the Board for approval pursuant to Government Code section 87306 and 87306.5. The changes include the elimination and addition of positions designated to file conflict of interest statements. These changes will ensure that the Conflict of Interest Code accurately reflects the current positions and organizational structure in use by the District. A strike-out version of the Conflict of Interest Code is attached as Exhibit B. CONSEQUENCE OF NEGATIVE ACTION: None. CHILDREN'S IMPACT STATEMENT: Not Applicable. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Cynthia Schwerin, Deputy County Counsel, (925) 335-1800 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Cynthia Schwerin, Deputy County Counsel, David Twa, Clerk of the Board of Supervisors, Stephen Healy, Fire Chief, MOFPD C.109 To:Board of Supervisors From:Sharon L. Anderson, County Counsel Date:December 6, 2016 Contra Costa County Subject:Conflict of Interest Code for the Moraga-Orinda Fire Protection District of Contra Costa County ATTACHMENTS Ex. A - MOFPD COI Code Ex. B - MOFPD COI Code STRIKEOUT RECOMMENDATION(S): 1. ADOPT Resolution No. 2016/663 authorizing the issuance of Multifamily Housing Revenue Bonds in a principal amount not to exceed $21,000,000 to finance the acquisition and construction of Hana Gardens Senior Apartments in El Cerrito (the "Development"). 2. FIND and DECLARE that the recitals contained in the proposed Resolution are true and correct. 3. AUTHORIZE the issuance of County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Senior Apartments), Series 2016E bonds (the "Bonds") in an aggregate principal amount not to exceed $21,000,000. 4. APPROVE the form of, and authorize the County to execute, the Indenture between the County and Wells Fargo Bank National Association. (the "Bank"). 5. APPROVE the form of, and authorize the County to execute, the Construction Loan Agreement among the Bank, the County and El Cerrito Senior L.P. (the "Borrower"). 6. APPROVE the form of, and authorize the County to execute, the Regulatory Agreement and Declaration of Restrictive Covenants between the County and Borrower. 7. APPROVE the form of, and authorize the County to execute, the Assignment of Deed of Trust and Loan Documents by the County to the Bank. 8. APPOINT Quint & Thimmig, LLP as bond counsel for the transaction. 9. AUTHORIZE and DIRECT the Designated Officers of the County, as defined in Resolution No. 2016/663, to do any and all things and take any all actions, and execute and deliver any and all certificates, agreements, and other documents which the officer may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with the Resolution. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Kara Douglas 925-674-7880 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.110 To:Board of Supervisors From:John Kopchik, Director, Conservation & Development Department Date:December 6, 2016 Contra Costa County Subject:Bond Sale Resolution - Hana Gardens Apartments, El Cerrito FISCAL IMPACT: No impact to the General Fund. At the closing for the Bonds, the County is reimbursed for costs incurred in the issuance process. Annual expenses for monitoring of Regulatory Agreement provisions ensuring units in the Development will be rented to low income households will be reimbursed through issuer fees established in the documents for the Bonds. The Bonds will be solely secured by and payable from revenues (e.g. Development rents, reserves, etc.) pledged under the Bond documents. No County funds are pledged to secure the Bonds. BACKGROUND: The recommended action is the adoption of a Resolution by the Board, as the legislative body of the County, authorizing the issuance of Multifamily Housing Revenue Bonds, the proceeds of which will be used to finance the acquisition and construction of Hana Gardens Senior Apartments, a 63 unit residential housing development located at 10860 San Pablo Avenue in El Cerrito. The ownership entity for the development will be El Cerrito Senior, L.P., a California limited partnership with El Cerrito Senior, LLC serving as general partner of the Borrower. The ownership entity is an affiliate of Eden Housing Associates, a local non-profit housing developer that has developed over 7,500 units of housing over the past 48 years.Wells Fargo Tax Credit Equity will be the tax credit investor special limited partner. On March 1, 2016, the Board of Supervisors adopted Resolution No. 2016/89 expressing the Board's intent to issue multi-family housing revenue bonds for the Development. That Resolution authorized the submittal of an application by the County for tax-exempt private activity bond authority from the California Debt Limit Allocation Committee. Subsequent to the adoption of that Resolution, the County, as required by Section 147(f) of the Internal Revenue Code, held a noticed public hearing to permit interested parties to comment on the proposed financing and the Development. That hearing was held on March 10, 2016, with no comments received from the public. The Board adopted Resolution No. 2016/120 on March 29, 2016, to authorize proceeding with the issuance of the Bonds pursuant to Section 147(f) of the Internal Revenue Code. On July 20, 2016, the California Debt Limit Allocation Committee awarded the County authority to issue the Bonds in a maximum principal amount of $21,000,000. That authority will be used to issue and sell the Bonds directly to Wells Fargo Bank National Association, with the proceeds of the Bonds to be used to fund a loan by the Bank to El Cerrito Senior L.P. In addition to the proceeds of the Bonds, the Development will utilize other forms of financing detailed in Attachment A. The transaction is expected to close on or about January 20, 2017. CONSEQUENCE OF NEGATIVE ACTION: Negative action would prevent the County from issuing the Multifamily Housing Revenue Bonds in order to provide a loan to El Cerrito Senior, L.P. to finance the construction of Hana Gardens Senior Apartments. ATTACHMENTS Resolution No. 2016/663 Attachment A - Plan of Finance Attachment B - Loan Agreement Attachment C - Indenture Attachment D - Regulatory Agreement Attachment E - Assignment THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/663 RESOLUTION AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS IN A PRINCIPAL AMOUNT NOT TO EXCEED $21,000,000 TO FINANCE THE ACQUISITION AND CONSTRUCTION OF A MULTIFAMILY RENTAL HOUSING PROJECT FOR EL CERRITO SENIOR, L.P., AND OTHER MATTERS RELATING THERETO WHEREAS, the County of Contra Costa (the “County”) is authorized pursuant to Chapter 7 of Part 5 of Division 31 of the Health and Safety Code of the State of California (the “Act”) to issue bonds and notes for the purpose of financing multifamily rental housing facilities; and WHEREAS, El Cerrito Senior, L.P., a California limited partnership (the “Borrower”) has requested that the County issue multifamily housing revenue bonds (the “Bonds”) and loan the proceeds of the Bonds to the Borrower to finance the acquisition and construction by the Borrower of a 63 unit residential rental housing development (the “Development”) to be known as Hana Gardens Apartments and to be located at 10860 San Pablo Avenue in El Cerrito, California; and WHEREAS, on March 10, 2016, the Community Development Bond Program Manager of the County held a public hearing on the proposed issuance of the Bonds by the County for, and the financing, ownership and operation of, the Development, as required under the provisions of the Internal Revenue Code (the “Code”) applicable to tax-exempt obligations, following published notice of such hearing, and communicated to the Board of Supervisors of the County all written and oral testimony received at the hearing; and WHEREAS, on March 29, 2016, the Board of Supervisors of the County adopted Resolution No. 2016/120 authorizing the issuance of the Bonds to finance the Development in satisfaction of public approval requirements of the Code; and WHEREAS, the California Debt Limit Allocation Committee adopted its Resolution No. 16-100 on July 20, 2016 allocating $21,000,000 of the State of California ceiling on private activity bonds for 2016 to the County for the purpose of financing the Development; and WHEREAS, in order to assist in the financing of the Development, the County has determined to issue the Bonds, as authorized by the Act, and sell the Bonds to Wells Fargo Bank, National Association (the “Bank”); and WHEREAS, it is proposed that the Bonds be issued pursuant to an indenture of trust (the “Indenture”), between the County and the Bank, and that the proceeds of the sale of the Bonds to the Bank be used to make a loan to the Borrower pursuant to a loan agreement (the “Loan Agreement”) among the Bank, the County and the Borrower, with amounts due from the County to the Bank under the Bonds and the Indenture to be payable solely from amounts paid by the Borrower under the Loan Agreement; and WHEREAS, there have been prepared various documents with respect to the issuance by the County of the Bonds, copies of which are on file with the Clerk of the Board, and the Board of Supervisors now desires to approve the issuance of the Bonds and the execution and delivery of such documents by the County; and WHEREAS, all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in connection with the issuance of the Bonds as contemplated by this Resolution and the documents referred to herein exist, have happened and have been performed in due time, form and manner as required by the laws of the State of California, including the Act. NOW, THEREFORE, BE IT RESOLVED, by the Board of Supervisors of the County of Contra Costa, as follows: Section 1. The Board of Supervisors hereby finds and declares that the foregoing recitals are true and correct. Section 2. Pursuant to the Act and the Indenture, the Bonds designated as “County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E” in an aggregate principal amount of not to exceed $21,000,000, are hereby authorized to be issued. The Bonds shall be executed by the manual or facsimile signature of the Chair of the Board of Supervisors (the “Chair”), in the form set forth in and otherwise in accordance with the Indenture. Section 3. The Indenture between the County and the Bank (the “Indenture”), in the form on file with the Clerk of the Board, is hereby approved. Any one of the Chair of the Board of Supervisors, the Vice-Chair of the Board of Supervisors, the County Administrator, the Director of Conservation and Development, the Assistant Deputy Director of Conservation and Development and the Community Development Bond Program Manager (collectively, the “Designated Officers”), acting alone, is hereby authorized, for and in the name and on behalf of the County, to execute and deliver the Indenture in said form, together with such additions thereto or changes therein as are recommended or approved by the Designated Officer executing the Indenture upon consultation with Bond Counsel to the County (including such additions or changes as are necessary or advisable in accordance with Section 9 hereof, provided that no additions or changes shall authorize an aggregate principal amount of the Bonds in excess of the amount set forth in Section 2 above), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Indenture by the County. The date, maturity date, interest rate or rates, privileges, manner of execution, place of payment, terms of redemption and other terms of the Bonds shall be as provided in the Indenture as finally executed. Section 4. The Loan Agreement among the Bank, the County and the Borrower, in the form on file with the Clerk of the Board, is hereby approved. Any one of the Designated Officers, acting alone, is hereby authorized to execute and deliver the Loan Agreement in said form, together with such additions thereto or changes therein as are recommended or approved by the Designated Officer executing the Loan Agreement upon consultation with Bond Counsel to the County (including such additions or changes as are necessary or advisable in accordance with Section 9 hereof), the approval of such changes to be conclusively evidenced by the execution and delivery of the Loan Agreement by the County. Section 5. The regulatory agreement and declaration of restrictive covenants relating to the Development, between the County and the Borrower (the “Regulatory Agreement”), in the form on file with the Clerk of the Board, is hereby approved. Any one of the Designated Officers is hereby authorized, acting alone, for and in the name and on behalf of the County, to execute and deliver the Regulatory Agreement in said form, together with such additions thereto or changes therein as are recommended or approved by the Designated Officer executing the Regulatory Agreement upon consultation with Bond Counsel to the County (including such additions or changes as are necessary or advisable in accordance with Section 9 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Regulatory Agreement by the County. Section 6. The Assignment of Deed of Trust and Loan Documents, by the County to the Bank (the “Assignment”), in the form on file with the Clerk of the Board, is hereby approved. Any one of the Designated Officers is hereby authorized, acting alone, for and in the name and on behalf of the County, to execute and deliver the Assignment in said form, together with such additions thereto or changes therein as are recommended or approved by the Designated Officer executing the Assignment upon consultation with Bond Counsel to the County (including such additions or changes as are necessary or advisable in accordance with Section 9 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Assignment by the County. Section 7. The Bonds, when executed, shall be delivered to the Bank (as the purchaser of the Bonds), in accordance with written instructions executed on behalf of the County by any one of the Designated Officers of the County, which instructions said officers are hereby authorized, for and in the name and behalf of the County, to execute and deliver. Such instructions shall provide for the delivery of the Bonds to the Bank upon the funding by the Bank of the initial advance of the purchase price of the Bonds as described in Section 3.03(b) of the Indenture. Section 8. The law firm of Quint & Thimmig LLP is hereby designated as Bond Counsel to the County for the Bonds. The fees and expenses of such firm for matters related to the Bonds shall be payable solely from the proceeds of the Bonds or contributions by the Borrower. Section 9. All actions heretofore taken by the officers and agents of the County with respect to the issuance of the Bonds are hereby approved, confirmed and ratified, and the proper officers of the County, including the Designated Officers, are hereby authorized and directed, for and in the name and on behalf of the County, to do any and all things and take any and all actions and execute any and all certificates, agreements and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance and delivery of the Bonds in accordance with this Resolution, including but not limited to any certificates, agreements and other documents described in the Indenture, the Loan Agreement, the Regulatory Agreement or the Assignment, or otherwise necessary to issue the Bonds and consummate the transactions contemplated by the documents approved by this Resolution. Section 10. This Resolution shall take effect upon its adoption. Contact: Kara Douglas 925-674-7880 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Attachment A Hana Gardens Senior Apartments Multifamily Housing Revenue Bond Plan of Finance* Construction Permanent Tax Exempt Bond 21,000,000$ County HOME/CDBG 2,100,000 2,100,000 4% Low Income Housing Tax Credits 553,447 12,939,367 City of El Cerrito**308,015 308,015 State Affordable Housing and Sustainable Communities 5,271,696 State Infrastructure Investment Grant 1,399,547 Deferred Developer Fee & GP Equity 1,942,837 Total 23,961,462$ 23,961,462$ * The amounts will be refined during the transaction closing. ** The City also provided the land which is valued at approximately $3 million Loan No. 1016291 DWT 30207606v4 0088288-000026 LOAN AGREEMENT among COUNTY OF CONTRA COSTA, CALIFORNIA as Issuer WELLS FARGO BANK, NATIONAL ASSOCIATION as Bondowner Representative and EL CERRITO SENIOR, L.P. a California limited partnership as Borrower Relating to $______________ County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E Dated as of ///[December 1, 2016]/// The interests of the Issuer in this Loan Agreement and the Note, excluding the Reserved Rights, have been assigned to Wells Fargo Bank, National Association, as Bondowner Representative, pursuant to an Assignment of Deed of Trust and Loan Documents dated as of ///[December 1, 2016]/// by the Issuer for the benefit of Wells Fargo Bank, National Association, as the initial Bondowner Representative. -1- DWT 30207606v4 0088288-000026 LOAN AGREEMENT THIS LOAN AGREEMENT (this “Agreement” or this “Loan Agreement”) is made and entered into as of ///[December 1, 2016]///, by and among the COUNTY OF CONTRA COSTA, CALIFORNIA, a political subdivision and body corporate and politic, duly organized and validly existing under the laws of the State of California (in such capacity, the “Issuer”), WELLS FARGO BANK, NATIONAL ASSOCIATION, and its successors and assigns (“Bondowner Representative”), and EL CERRITO SENIOR, L.P., a California limited partnership (the “Borrower”). W I T N E S S E T H: WHEREAS, the Issuer is a political subdivision and body corporate and politic , duly organized and validly existing under the laws of the State of California (the “State”); and WHEREAS, pursuant to Chapter 7 of Part 5 of Division 31 (commencing with Section 52075) of the California Health and Safety Code of the State of California, as amended (collectively the “Act”), the Issuer is authorized and empowered to issue revenue bonds and apply the procee ds to make loans for the acquisition, construction and development of qualifying housing developments (defined in the Act to include buildings used to provide residential housing for four or more families); and WHEREAS, Borrower has requested that Issuer issue its Multifamily Housing Revenue Bonds (Hana Gardens Apartments) Series 2016E, in the original principal amount of up to $_____________.00 (the “Bonds”) for the purpose of making a loan (the “Loan”) to finance, in part, the construction of a multifamily rental housing project on (the “Improvements” or the “Project”) certain real property more particularly described on Exhibit A (the “Property”); and the Bonds shall be issued pursuant to an Indenture of Trust dated as of ///[December 1, 2016]///, by and between Issuer and Bondowner Representative (the “Indenture”); and WHEREAS, the Issuer deems it desirable and in keeping with its governmental purpose to issue the Bonds and lend the proceeds thereof to Borrower for the purposes described above under the t erms and conditions contained in this Loan Agreement; and WHEREAS, to evidence the Loan, Borrower is executing in favor of the Issuer, that certain Promissory Note payable to the order of Issuer in the aggregate original principal amount of $_______________.00 (the “Note”), which Note provides for the repayment of the Loan in amounts sufficient to pay, when due, the principal of, premium, if any, and interest on the Bonds, and Borrower has executed or caused to be executed and delivered to Issuer the Construction and Permanent Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing (the “Deed of Trust”) with respect to the Project, which Deed of Trust shall be assigned by Issuer to Bondowner Representative pursuant t o that certain Assignment of Deed of Trust and Loan Documents, dated as of even date herewith, to secure, among other things, the payments due under the Note and this Loan Agreement; and WHEREAS in order to secure additional financing for the Project, Borrower has obtained a loan made by the County of Contra Costa, a political subdivision and body corporate and politic (in such capacity, the “County”), to Borrower in the principal amount of $2,100,000 .00 (the “County Loan”), pursuant to that certain Development Loan Agreement dated as of ____________________, 2016, by and between Borrower and the County (the “County Loan Agreement”). The County Loan will be evidenced by that certain Promissory Note dated as of _________________, 2016, made by Borrower to th e order of the County (the “County Note”) and secured by that certain Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of ___________________, 2016, made by Borrower for the benefit of the County and recorded in the Official Records of Contra Costa County, California (the “Official Records”) substantially concurrently with the Deed of Trust (the “County Deed of Trust”). In connection with the execution of the County Loan, the County, the City (as defined below) and Borrower will also enter into that certain Intercreditor Agreement dated s of _______________, 2016 and recorded in the Official Records substantially concurrently with the Deed of Trust (the “County/City Intercreditor Agreement”). In connection with the County Loan, Borrower has agreed to restrict the use of the Property pursuant to the terms of (1) that certain HOME/CDBG Regulatory Agreement and Declaration of Restrictive Covenants (the “HOME/CDBG Regulatory Agreement”) and (2) that certain County Regulatory -2- DWT 30207606v4 0088288-000026 Agreement and Declaration of Restrictive Covenants (the “County Regulatory Agreement”), each, dated as of ____________________, 2016, to be recorded in the Official Records substantially concurrently with the Deed of Trust. Substantially concurrently herewith, the County, Borrower and Bondowner Representative will enter into that certain Subordination Agreement (County Loan) dated as of even date herewith, and recorded in the Official Records substantially concurrently with the Deed of Trust (the “County Subordination Agreement”). WHEREAS Borrower has also obtained a loan made by the City of El Cerrito, a municipal corporation (the “City”), to Borrower in the principal amount of $300,000 .00 (the “City Loan”), pursuant to that certain Disposition, Development and Loan Agreement dated as of April 23, 2014, as amended by that certain First Amendment to Disposition, Development and Loan Agreement Between the City of El Cerrito and El Cerrito Senior, L.P. (the “DDLA Amendment”), between Borrower and the City (as amended, the “DDLA”). The City Loan will be evidenced by that certain ///[Amended and Restated Promissory Note]/// dated as of ///[December 1, 2016]///, made by Borrower to the order of the City (the “City Note”) and secured by that certain Construction and Permanent Deed of Trust and Security Agreement, dated as of ___________________, 2016, made by Borrower for the benefit of the City and recorded in the Official Records substantially concurrently with the Deed of Trust (the “City Deed of Trust”). In connection with the City Loan, Borrower and the City will execute that certain Regulatory Agreement and Declaration of Restrictive Covenants dated as of __________________, 2016 (the “City Regulatory Agreement”), and that certain Notice of Affordability Restrictions on Transfer of Property dated as of __________________, 2016 (the “City Notice of Restrictions”), each recorded in the Official Records substantially concurrently with the Deed of Trust. Borrower has also executed and delivered to the City that certain Assignment of Agreements, Plans and Specifications, and Approvals (the “City Assignment of Agreements”). In connection with the City Loan, the City, Borrower and Bondowner Representative will enter into that certain Subordination Agreement (City Loan) dated as of even date herewith, and recorded in the Official Records substantially concurrently with the Deed of Trust (the “City Subordination Agreement”). WHEREAS Borrower has also obtained a loan made by Eden Development, Inc., a California nonprofit public benefit corporation (“Sponsor”), to Borrower in the principal amount of $1,422,227.00 (the “Infill Grant Sponsor Loan”). The Infill Grant Sponsor Loan will be evidenced by that certain Secured Promissory Note dated as of _________________, 2016, made by Borrower to the order of Sponsor (the “Infill Grant Sponsor Note”) and secured by that certain Deed of Trust With Assignment of Rents (IIG Construction Loan) dated as of ___________________, 2016, made by Borrower for the benefit of Sponso r and recorded in the Official Records substantially concurrently with the Deed of Trust (the “Infill Grant Sponsor Deed of Trust”). In connection with the Infill Grant Sponsor Loan, the Sponsor, Borrower and Bondowner Representative will enter into that certain Subordination Agreement (Eden Development Loan) dated as of even date herewith, and recorded in the Official Records substantially concurrently with the Deed of Trust (the “Sponsor Subordination Agreement”). Sponsor will fund the Infill Grant Sponsor Loan from proceeds of an Infill Infrastructure Grant from the Department of Housing and Community Development (“HCD”) in the amount of $1,422,227.00 (the “Infill Grant”) made pursuant to that certain Standard Agreement dated as of ___________________, 2016, between HCD, on the one hand, and Eden Housing, Inc. , a California nonprofit public benefit corporation (“Manager”), and the City of El Cerrito, on the other hand (collectively, “IIG Co-Applicants”) (the “Infill Grant Standard Agreement”). The Infill Grant will be disbursed in accordance with that certain ///[Infill Infrastructure Grant Program Disbursement Agreement dated as of _________________, 2016, by and among Co-Applicants, HCD and Sponsor, in its capacity as “Alternate Payee”]/// (the “Infill Grant Disbursement Agreement”). In connection with the Infill Grant, Sponsor, Borrower and HCD will enter into that certain ///[Declaration of Restrictive Covenants for the Development and Operation of Affordable Housing]/// dated as of _________________, 2016, recorded in the Official Records substantially concurrently with the Deed of Trust (the “Infill Grant Regulatory Agreement”). HCD, Borrower and Bondowner Representative will enter into that certain ///[Subordination Agreement]/// dated as of even date herewith, and recorded in the Official Records substantially concurrently with the Deed of Trust (the “HCD Subordination Agreement”), subordinating the Infill Grant Regulatory Agreement to the Deed of Trust. WHEREAS, pursuant to that certain Standard Agreement, Contract No. ______________, dated as of ______________, 2016, between HCD, on the one hand, and Manager and the City of El Cerrito, on the other hand (collectively, “AHSC Co-Applicants”) and Borrower (the “AHSC Standard Agreement”), upon the completion of the construction of the Improvements and the satisfaction of the conditions set forth in the Standard Agreement, HCD will make a loan to Borrower in the amount of $5,271,696 .00 (the “AHSC Loan”). -3- DWT 30207606v4 0088288-000026 WHEREAS, additional funds shall be contributed to the Project in the aggregate amount of ///[$12,499,688.00]/// (the “Capital Contributions”) from Wells Fargo Affordable Housing Community Development Corporation, a North Carolina corporation, in its capacity as investor limited partner in Borrower (together with its permitted successors and assigns, “Investor Limited Partner”); and WHEREAS, pursuant to that certain Bond Purchase Agreement dated of even date herewith (the “Bond Purchase Agreement”) by and among Borrower, Bondowner Representative and Cali fornia Community Reinvestment Corporation (“CCRC” or the “Permanent Lender”), CCRC has agreed, subject to the satisfaction of the terms and conditions set forth therein, to purchase $____________ in principal amount of the Bonds from Bondowner Representative and from and after the Conversion Date, CCRC shall, for all purposes of this Loan Agreement and the Indenture, become the Bondowner Representative; and WHEREAS, the execution and delivery of this Loan Agreement and the issuance of the Bonds have been duly and validly authorized by the Issuer. NOW, THEREFORE, the Issuer, Borrower and the Bondowner Representative, each in consideration of the representations, covenants and agreements of the other as set forth herein, mutually represent, covenant and agree as follows: ARTICLE 1. DEFINITIONS 1.1 DEFINED TERMS. Capitalized terms used in this Loan Agreement and not otherwise defined have the meanings set forth for those terms in Section 1.01 of the Indenture. “Account” shall have the meaning ascribed to such term in the Disbursement Plan attached hereto as Exhibit D. “Act” has the meaning ascribed to such term in the second recital to this Loan Agreement. “ADA” means the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. as hereinafter amended or modified. “Additional Charges” has the meaning ascribed to such term in Section 3.4 of this Loan Agreement. “AHAP Contract” shall have the meaning set forth in Section 4.1(w). “AHSC Loan” has the meaning ascribed thereto in the ninth recital to this Loan Agreement. “AHSC Standard Agreement” has the meaning ascribed thereto in the ninth recital to this Loan Agreement. “Anti-Corruption Laws” means: (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other anti-bribery or anti-corruption laws, regulations or ordinances in any jurisdiction in which Borrower or any member of the Borrowing Group is located or doing business. “Anti-Money Laundering Laws” means applicable laws or regulations in any jurisdiction in which Borrower or any member of the Borrowing Group is located or doing business that relates to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto. “Applicable LIBO Rate” shall have the meaning ascribed to “LIBO Rate” in the Note. “Application for Payment” has the meaning ascribed to such term in the Disbursement Plan attached hereto as Exhibit ”D”. “Approved Form” means the form of lease to be utilized in the leasing of the re sidential units as approved by the Bondowner Representative. -4- DWT 30207606v4 0088288-000026 “Architect” means Van Meter Williams Pollack, LLP or another architect approved in writing by Bondowner Representative. “Architectural Contract” means that certain Standard Form of Agreement Between Owner and Architect, dated as of July 1, 2015, by and between Architect and Borrower, as may be amended or replaced from time to time. “Assignment of Deed of Trust” means that certain Assignment of Deed of Trust and Loan Documents, dated as of even date herewith, by and among Issuer as Assignor and Bondowner Representative as Assignee, and consented to by Borrower. “Bankruptcy Code” means the Bankruptcy Reform Act of 1978 (11 U.S.C. §§ 101-1330) as now or hereafter amended or recodified. “Bond Counsel” has the meaning ascribed to such term in Section 1.01 of the Indenture. “Bond Documents” means the Indenture, the Bonds, the Regulatory Agreement and any other documents executed in connection with the issuance of the Bonds, including as applicable, the Lo an Documents. “Bond Fund” has the meaning ascribed to such term in Section 5.02 of the Indenture. “Bond Purchase Agreement” has the meaning ascribed thereto in the eleventh recital to this Loan Agreement. “Bonded Work” shall have the meaning ascribed to such term in Section 10.1. “Bondholder” has the meaning given to such term in the Indenture. “Bondowner Representative” means Wells Fargo Bank, National Association and its successors and assigns, and as otherwise defined in Section 1.01 of the Indenture. E ffective as of the Conversion Date and CCRC’s purchase of the Bonds, any reference herein to Bondowner Representative shall mean CCRC. “Bonds” has the meaning ascribed to such term in the third recital to this Loan Agreement. “Borrower” means El Cerrito Senior, L.P., a California limited partnership, and its permitted successors and assigns. “Borrower’s Funds” means all funds of Borrower deposited with the Bondowner Representative pursuant to the terms and conditions of this Loan Agreement. “Borrower’s Funds Account” means an account at Bondowner Representative, from which no withdrawals are permitted without Bondowner Representative’s consent, in which all deposits of funds required of Borrower pursuant to this Loan Agreement will be held. “Borrowing Group” means: (a) Borrower; (b) any Affiliate or subsidiary of Borrower; (c) any Guarantor; (d) any Indemnitor; (e) any other owner of any collateral securing all or any part of the Loan, any Guaranty, any Indemnity or this Agreement; and (f) any officer, direct or, agent or representative acting, at any time, in any capacity on behalf of Borrower, Guarantor, Indemnitor or any such owner with respect to the use of any proceeds of the Loan. “Business Day” means a day of the week (but not a Saturday, Sunday or holid ay) on which the offices of Bondowner Representative are open to the public for carrying on substantially all of Bondowner Representative’s business functions. Unless specifically referenced in this Loan Agreement as a Business Day, all references to “days” shall be to calendar days. “Capital Contribution(s)” means the aggregate sum of approximately ///[$12,499,688]///, which the Investor Limited Partner has committed to contribute to the capital of Borrower pursuant to the Partnership Documents and as described below: -5- DWT 30207606v4 0088288-000026 Payment Amount % of Total Investment Timing 1 $___________ __% Concurrently with the issuance of the Bonds. 2 $___________ __% 3 $___________ __% 4 $___________ __% TOTAL $___________ 100.0% Total Capital Contributions “CCRC” has the meaning ascribed thereto in the eleventh recital to this Loan Agreement. “CCRC Takeout Loan Maturity Date” shall have the meaning given such term in the Note. “City” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “City Assignment of Agreements” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “City Deed of Trust” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “City Loan” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “City Loan Documents” shall mean, collectively, the DDLA, the City Note, the City Deed of Trust, the City Regulatory Agreement, the City Notice of Restrictions, the City Assignment of Agreements and the County/City Intercreditor Agreement. “City Note” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “City Notice of Restrictions” shall have the meaning ascribed thereto in the seventh recital to this Loa n Agreement. “City Regulatory Agreement” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “City Subordination Agreement” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “Civil Engineer” means Luk and Associates. “Civil Engineering Agreement” means that certain ______________________________. “Closing Date” means December __, 2016 or the date upon which the Loan closes. “Code” means the Internal Revenue Code of 1986, as amended and with respect to a specific section thereof, such reference shall be deemed to include (a) the regulations promulgated by the United States Department of Treasury under such section, (b) any successor provision of similar import hereafter enacted, (c) any corresponding provision of any subsequent Internal Revenue Code and (d) the regulations promulgated under the provisions described in (b) and (c). “Completion Date” means ______________, the date by which construction of the Improvements must be completed. “Construction Agreement” means the construction contract, dated as of _____________, executed by and between Borrower and Contractor, for the construction of the Project, as may be amended or replaced from time to time. “Contract Administrator” or “Housing Authority” means the Housing Authority of Contra Costa County. -6- DWT 30207606v4 0088288-000026 “Contractor” means Midstate Construction Corporation. “Conversion” shall have the meaning ascribed to that term in Section 6.1 of this Loan Agreement. “Conversion Conditions” shall have the meaning ascribed to that term in Section 6.1 of this Loan Agreement. “Conversion Date” shall have the meaning given such term in Section 3.5 of this Loan Agreement. “County” shall have the meaning ascribed thereto in the sixth recital to this Loan Agreement. “County Deed of Trust” shall have the meaning ascribed thereto in the sixth recital to this Loan Agreement. “County Loan” shall have the meaning ascribed thereto in the sixth recital to this Loan Agreement. “County Loan Agreement” shall have the meaning ascribed thereto in the sixth recital to this Loan Agreement. “County Loan Documents” shall mean, collectively, the County Loan Agreement, the County Note, the County Deed of Trust, the HOME/CDBG Regulatory Agreement, the County Regulatory Agreement and the County/City Intercreditor Agreement. “County Note” shall have the meaning ascribed thereto in the sixth recital to this Loan Agreement. “County Subordination Agreement” shall have the meaning ascribed thereto in the sixth recital to this Loan Agreement. “DDLA” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement. “Debt Service” means the actual monthly payment based upon the then current outstanding principal balance of the Loan (which should be the Permanent Loan Amount after the payment of any required principal payment on or before the Conversion Date to pay down the Loan to the Permanent Loan Amount as required pursuant to the terms of this Loan Agreement) based on the amortization schedule and the interest rate specified in the Note for the remaining term of the Loan as of the date the Debt Service is calculated. “Debt Service Coverage” means Net Operating Income divided by Debt Service, and may be expressed as a ratio (i.e., of X.XX:1.00). “Decontrol Value” shall have the meaning ascribed to such term in Section 42 of the Code, assuming restricted rents convert to affordable rents over the three year deregulation period. “Deed of Trust” means that certain Construction and Permanent Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing on the Property, dated as of even date herewith, as from time to time supplemented or amended. “Default” shall have the meaning ascribed to such term in Section 13.1. “Default Rate” means the rate which is five percent (5%) above the then current Note Rate, provided, however, that in no event shall the Default Rate exceed the Maximum Interest Rate. “Delivery Assurance Deed of Trust” shall mean that certain Delivery Assurance Deed of Trust, Security Agreement and Fixture Filing made by Borrower as Trustor to Title Company as Trustee for the benefit of CCRC, executed as of even date herewith. “Delivery Assurance Note” means that certain Promissory Note (Delivery Assurance Fee) made by Borrower to the order of CCRC, executed as of even date herewith. -7- DWT 30207606v4 0088288-000026 “Developer” means Eden Housing, Inc., a California nonprofit public benefit corporation. “Disbursement” means the drawdown purchase of Bonds and related disbursements of the Loan as provided in Sections 4.1, 4.2, 4.3 and 4.11. “Disbursement Plan” means the Disbursement Plan set forth in Exhibit D, attached hereto and incorporated herein by reference. “DSCR” shall mean, for any Period, the ratio of Net Income for the Property to Debt Service, using the actual Net Income and Debt Service for such Period. “Effective Date” means the date the Deed of Trust is recorded in the office of the County Recorder of the County where the Property is located. “Effective Gross Income” means (i) the actual gross rental income of the Property, supported by a rent roll in form and substance acceptable to Bondowner Representative in its reasonable discretion, plus (ii) other income from the Property, supported by evidence of such income acceptable to Bondowner Representative in its reasonable discretion, minus (iii) if the Property is leased beyond the underwritten stabilized occupancy, an amount representing a five percent (5.00%) vacancy factor. “Engineer” means, individually or collectively, as applicable, Civil Engineer and Soils Engineer. “Engineering Agreement” means, individually or collectively, as applicable, the Civil Engineering Agreement and the Soils Engineering Agreement. “Environmental Reports” shall mean the reports referred to in Section 9.1(a) and any other environmental reports or updates requested by Bondowner Representative. “Event of Default” means Default. “Expenses” means all operating expenses incurred for or attributable to the Property, including a monthly accrual for taxes, insurance, replacement reserves a nd a reasonable management fee, but not including amounts payable under the Note during the Permanent Loan Period. “Financial Requirements Analysis” means the Financial Requirements Analysis attached hereto as Exhibit C, as it may be amended from time to time with the written consent of Bondowner Representative. “First Extended Mandatory Conversion Date” means _________________, 20___. “First Option to Extend” means the option to extend the Mandatory Conversion Date pursuant to Section 3.6. “First Reset Date” means the Conversion Date. “First Reset Rate” shall have the meaning ascribed thereto in Section 3.8(a). “General Partner” means El Cerrito Senior LLC, a California limited liability company. “General Partner Equity Contribution” shall have the meaning ascribed thereto in Section 4.1(o). “Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank, (or similar monetary or regulatory authority) thereof, any entity exercising executive, legislative, judicial or regulatory functions of or pertaining to government, and any corporation or other entity owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing. -8- DWT 30207606v4 0088288-000026 “Gross Income” shall mean, for any Period, the sum of all stabilized residential tenant lease income from the Property actually received in such Period, all stabilized commercial tenant lease income actually received from the Property in such Period, and only such other income actually received from the Prope rty in such Period as is reasonably and in good faith approved by Bondowner Representative. “Gross Operating Income” shall have the meaning ascribed to such term in Section 12.5. “Guarantor” means Eden Housing, Inc., a California nonprofit public benefit corporation, and any other person or entity who, or which, in any manner, is or becomes obligated to Bondowner Representative under any guaranty now or hereafter executed in connection with the Loan (collectively or severally as the context thereof may suggest or require). “HAP Contract” shall have the meaning set forth in that certain Assignment of Agreement to Enter Into Housing Assistance Payments Contract and Housing Assistance Payments dated as of even date herewith, executed by Borrower in favor of Bondowner Representative. “Hazardous Materials” shall have the meaning ascribed to such term in Section 9.1(a). “Hazardous Materials Claims” shall have the meaning ascribed to such term in Section 9.1(c). “Hazardous Materials Laws” shall have the meaning ascribed to such term in Section 9.1(b). “HCD” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. ///[“HCD AHSC Documents” shall mean, collectively, the AHSC Standard Agreement, the AHSC Disbursement Agreement, the AHSC Estoppel Certificate, and from and after the Conversion Date, shall also include the AHSC Note, the AHSC Deed of Trust and the AHSC Regulatory Agreement.]/// “HCD IIG Documents” shall mean, collectively, the Infill Grant Standard Agreement, the Infill Grant Disbursement Agreement and the Infill Grant Regulatory Agreement. “HCD Subordination Agreement” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “HUD” shall mean the U.S. Department of Housing and Urban Development. “HUD Documents” shall have the meaning ascribed thereto in Section 4.1(v). “HUD Subordination Agreement” shall mean that certain Agreement to Subordinate to RAD Use Agreement]/// dated as of _______________, 2016, among Borrower, HUD and Bondowner Representative, subordinating the liens and charges of the Deed of Trust to the HUD Use Agreement. “HUD Use Agreement” shall have the meaning ascribed thereto in Section 4.1(v). “Impositions” shall mean the meaning ascribed to such term in Section 11.23. “Improvements” shall have the meaning ascribed to such term in the third recital to this Loan Agreement. “Indemnitor” means Borrower, Guarantor and any other person or entity who, or which, in any manner, is or becomes obligated to Bondowner Representative under any inde mnity now or hereafter executed in connection with the Loan (collectively or severally as the context thereof may suggest or require). “Indenture” means the Indenture of Trust, dated as of ///[December 1, 2016]/// by and between Issuer and Bondowner Representative, as it may be amended from time to time. -9- DWT 30207606v4 0088288-000026 “Index” means the 15 year AAA Tax Exempt Municipal Bond Index published by Bloomberg.com or if such index is no longer reported then a comparable industry index selected by Bondowner Representative, adjusted to constant maturity, and as available ten (10) days before a determination of the interest rate on the Note is to be made. “Infill Grant” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Disbursement Agreement” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Sponsor Deed of Trust” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Sponsor Loan” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Sponsor Loan Documents” shall mean, collectively, the Infill Grant Sponsor Note and the Infill Grant Sponsor Deed of Trust. “Infill Grant Sponsor Note” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Regulatory Agreement” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Standard Agreement” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “Infill Grant Work” means the improvements for which HCD awarded the Infill Grant to Sponsor, which is more particularly described in ///[Exhibit D]/// to the Infill Grant Disbursement Agreement. “Initial Capital Contribution” shall have the meaning ascribed to such term in Section 8.2(w). “Investor Affiliate” means entities in which Wells Fargo Affordable Housing Community Development Corporation, a North Carolina corporation, or any of its subsidiaries (each, an “Investor Limited Partner Entity”) has an ownership interest, directly or indirectly, for which any Investor Limited Partner Entity manages and controls, directly or indirectly, the management decisions of the Investor Affiliate, or that are under common control with any Investor Limited Partner Entity. “Investor Limited Partner” shall have the meaning ascribed to such term in the tenth recital to this Loan Agreement. “Issuer” has the meaning ascribed thereto in the preamble to this Loan Agreement. “Licenses” shall have the meaning ascribed thereto in Section 11.27. “LIHTC” or “Tax Credits” means the Federal Low Income Housing Tax Credits, if any, allocated for the Improvements by TCAC. “Loan” means the principal sum that Issuer agrees to lend and Borrower agrees to borrow pursuant to the terms and conditions of this Loan Agreement, in the amount of up to _____________________________ and No/100 Dollars ($_____________); and following the Conversion Date, in an amount not to exceed the Permanent Loan Amount. “Loan Documents” means those documents, as hereafter amended, supplemented, replaced or modified, properly executed and in recordable form, if necessary, listed in Exhibit B as Loan Documents. -10- DWT 30207606v4 0088288-000026 “Mandatory Conversion Date” means ///[_________________, 20___]///, or shall mean the First Extended Mandatory Conversion Date upon exercise of the First Option to Extend and the Second Extended Mandatory Conversion Date upon exercise of the Second Option to Extend. “Master Lease” that certain Commercial Master Lease dated as of ________________, 2016, between Borrower, as landlord, and Eden Commercial, Inc., as tenant, covering commercial space at the Property, containing approximately ///[2,300]/// square feet. “Master Lease Subordination Agreement” means that certain Subordination Agreement (Master Lease) dated as of the date hereof by and among Borrower, Bondowner Representative and Eden Housing, Inc., as tenant under the Master Lease. “Maturity Date” shall have the meaning ascribed to such term in the Note. “Maximum Interest Rate” means the lesser of twelve percent (12%) per annum and the maximum interest rate permitted by law, if any. “Net Income” shall mean, for any Period, all Gross Income from the Property during such Period less Operating Expenses of the Property during such Period. “Net Monthly Cash Income” means all actual cash income received from the Property during a calendar month less the actual operating expenses incurred for or attributable to the Property, excluding amounts payable under the Note. “Net Operating Income” means Effective Gross Income minus Operating Expenses. “Note” means the Promissory Note made by Borrower to the order of Issuer in the original principal amount of $_____________ and endorsed by Issuer to the order of Bondowner Representative, dated as of even date with this Loan Agreement. “Note Rate” means the interest rate applicable from time to time in accordance with the terms of the Note. “Obligee” shall have the meaning ascribed to such term in Section 10.1. “OFAC” means the United States Treasury Department Office of Foreign Assets Control and any successor thereto. “One Month LIBO Rate” shall have the meaning ascribed to such term in the Note. “Operating Expenses” shall mean, for any Period, the following expenses of the Property to the extent that such expenses are reasonable in amount and customary for properties that are similar in type, size, quality and location to the Property: (i) taxes and assessments imposed upon the Project, to the extent that such taxes and assessments are required to be paid by Borrower and are actually paid or reserved for by Borrower in such Period; (ii) bond assessments properly allocable to such Period; (iii) insurance premiums for casualty insurance (including, without limitation, terrorism, flood and earthquake insurance, to the extent required under this Loan Agreement, the Subordinate Loan Documents and/or the Partnership Agreement) and liability insurance carried in connection with the Property and accrued during such Period, provided, however, if any insurance is maintained as part of a blanket policy covering the Property and other properties, the insurance premium included in this subparagraph shall be the premium fairly allocable to the Property for such Period; (iv) operating expenses reasonably and actually incurred or accrued by Borrower for resident services and for the management, operation, cleaning, leasing, maintenance and repair of the Property during such Period; (v) replacement and operating reserves as required pursuant to this Loan Agreement, any subordinate loan document and/or the Partnership Agreement; (vi) any other debt service (with mandatory payments) related to the Property and accrued during such Period; (vii) costs of deferred maintenance with respect to the Property accrued during such Period; and (viii) any monitoring or administrative fees accrued under the Bond Documents during such period . Operating Expenses shall not -11- DWT 30207606v4 0088288-000026 include any allowance for depreciation. For purposes of the calculation of Net Inco me or Net Operating Income, Operating Expenses will not include debt service under (vi) above. “Operating Reserve” shall have the meaning ascribed to such term in Section 11.47. “Operating Statement” shall have the meaning ascribed to such term in Section 12.5. “Other Related Documents” means those documents, as hereafter amended, supplemented, replaced or modified from time to time, properly executed and in recordable form, if necessary, listed in Exhibit B as Other Related Documents. “Participant” shall have the meaning ascribed to such term in Section 15.14. “Partnership Agreement” shall mean that certain ///[Amended and Restated Agreement of Limited Partnership of El Cerrito Senior, L.P.]///, dated on or about December ___, 2016, by and among General Partner, Investor Limited Partner and __________________, as withdrawing limited partner. “Partnership Documents” means the Partnership Agreement and all other documents now or hereafter executed by Borrower, General Partner and Investor Limited Partner, with the approval of Bondowner Representative (to the extent required pursuant to the terms of the Loan Documents), in connection with the Borrower and the investment in the Borrower by Investor Limited Partner. “Payment and Performance Bond” shall have the meaning given such term in Section 4.1(h). “Period” has the meaning set forth in Section 11.45. “Permanent Lender” means CCRC. “Permanent Loan Amount” means the maximum principal sum in the amount of _________________________ and No/100 Dollars ($_____________); provided however, that, at Conversion, the Loan shall not exceed 80% of CCRC’s appraised Section 8 market value at stabilized occupancy, and the Loan shall have a minimum 1.15 to 1.00 DSCR for not less than ninety (90) consecutive days immediately prior to Conversion based upon CCRC’s underwriting guidelines. “Permanent Loan Period” and “Permanent Loan Term” mean the period from the Conversion Date through the maturity date of the Note. “Permitted Encumbrances” means the HUD Use Agreement, the Regulatory Agreement, the HOME/CDBG Regulatory Agreement, the County Regulatory Agreement, the County Deed of Trust, the City Regulatory Agreement, the City Notice of Restrictions, the City Deed of Trust, the Infill Grant Regulatory Agreement, the Infill Grant Sponsor Deed of Trust, the County/City Intercreditor Agrement and those other title exceptions previously approved by Bondowner Representative. “Permitted Operating Expenses” shall have the meaning ascribed to such term in Section 12.5. “Permitted Prior Encumbrances” means those title exceptions previously approved by Bondowner Representative to be prior to the lien of the Deed of Trust, including, without limitation, the HUD Use Agreement and the Regulatory Agreement. “Permitted Transfer” means a transfer by Investor Limited Partner of its limited partnership interest in Borrower to an Investor Affiliate; provided, however, that all of the following conditions shall be satisfied: (i) the transferee assumes and agrees to be bound by and perform all of the oblig ations of the transferor under the Partnership Documents; (ii) Investor Limited Partner has delivered to Bondowner Representative complete and accurate copies of all documentation evidencing such transfer; (iii) if any Capital Contributions remain unpaid at the time of such transfer, the Investor Limited Partner remains liable to -12- DWT 30207606v4 0088288-000026 Borrower for payment of such Capital Contributions; and (iv) with respect to a transfer by any limited partner of Investor Limited Partner of any of its limited partnership interes ts in Investor Limited Partner, the Investor Limited Partner remains managed or controlled by an Investor Affiliate. Notwithstanding the foregoing, any transfer of Investor Limited Partner’s limited partnership interest in Borrower to an entity in which Wells Fargo Affordable Housing Community Development Corporation or its affiliates, has a controlling management interest shall be a Permitted Transfer so long as the successor Investor Limited Partner assumes full liability for the payment to Borrower of a ny remaining unpaid Capital Contributions in accordance with the times and conditions for payment of such Capital Contributions set forth in the Partnership Agreement. Additionally, Investor Limited Partner’s pledge of its limited partnership interests as security for its obligations to make the Capital Contributions pursuant to the terms of the Partnership Documents shall be deemed to be a Permitted Transfer. “Permitted Transferee” shall mean an eligible transferee of a Permitted Transfer. “Person” or “person” means: any (a) individual, (b) any corporation, partnership, company, trust or other legal entity or (c) any other organization, whether or not a legal entity. With respect to any Sanctioned Person, “Person” also includes any group, sector, territor y or country. “Plans and Specifications” means the plans and specifications prepared by Architect heretofore delivered by Borrower to Bondowner Representative with respect to the Project. “Project” shall have the meaning ascribed to such term in the third recital to this Loan Agreement. “Project Costs” mean any and all costs incurred by Borrower with respect to the acquisition and construction of the Project including, without limitation, costs for the acquisition of property, the removal or demolition of existing structures, the construction of housing and related facilities and improvements, and all other work in connection therewith, and all costs of financing, including, without limitation, the cost of consultants, accounting and legal services, other expenses necessary or incident to determining the feasibility of the Project, administrative and other expenses necessary or incident to the Project and the financing thereof (including reimbursement to any municipality, county or entity for expenditures mad e for the Project) and all other costs approved by Bond Counsel to the extent such costs are paid from the proceeds of the Loan disbursed from the Bond Fund. “Property” means the real property described on Exhibit A. “Property Manager” means Eden Housing Management, Inc., a California nonprofit public benefit corporation. “Property Management Agreement” means that certain Amended and Restated Management Agreement, dated as of ///[September 1, 2016]///, by and between the Borrower and the Property Manager. “Qualified Project Costs” shall have the meaning given to the term “Qualified Development Costs” in Section 1.01 of the Indenture. “RAD HAP Contract” shall have the meaning ascribed thereto in Section 4.1(v). “Regulatory Agreement” means that certain Regulatory Agreement and Declaration of Restrictive Covenants, dated as of ///[December 1, 2016]/// by and between Issuer and Borrower, as originally executed, or as it may from time to time be supplemented, modified or amended. “Regulatory Costs” shall have the meaning ascribed to such term in the Note. “Related Person” means each Guarantor and any insider or affiliate (or insider or affiliate of any such insider or affiliate) of Borrower, determined by assuming that: (a) Borrower or such Guarantor or other affiliate or insider was a debtor at the time of determination of Related Person status; and (b) the terms -13- DWT 30207606v4 0088288-000026 “insider” and “debtor” have the meanings provided for those terms by Section 101 of the Federal Bankruptcy Code. “Replacement Reserve Agreement” means that certain Replacement Reserve Agreement, dated as of even date herewith, by and between Borrower and Bondowner Representative. “Requirements” has the meaning ascribed thereto in Section 5.15(a). “Reservation Letter” shall have the meaning ascribed to such term in Section 8.2(u). “Reserve Percentage” shall have the meaning ascribed to such term in the Note. “Restrictions” means all existing restrictions and regulatory agreements and all future restrictions and regulatory agreements relating to the use and operation of the Property and the Improvements. “Revenues” has the meaning given to such term in Section 1.01 of the Indenture. “Sanction” or “Sanctions” means individually and collectively, respectively, any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including but not limited to those imposed, administered or enforced from time to time by: (a) the United States of America, including those administered by the OFAC, the U.S. State Department, the U.S. Department of Commerce, or through any existing or future Executive Order, (b) the United Nations Security Council, (c) the European Union, (d) the United Kingdom, or (e) any other governmental authorities with jurisdiction over any Person within the Borrowing Group. “Sanctioned Country” means any country or territory that is a target of Sanctions. “Sanctioned Person” means any Person that is a target of Sanctions, including without limitation, a Person that is: (a) listed on OFAC’s Specially Designated Nationals and Blocked Persons List; (b) listed on OFAC’s Consolidated Non-Specially Designated Nationals List; (c) a legal entity that is deemed by OFAC to be a Sanctions target based on the ownership of such legal entity by Sanctioned Peron(s); or (d) a Person that is a Sanctions target pursuant to any territorial or country-based Sanctions program. “Sanctions” means any and all economic or financial sanctions, sectoral sanctions, secondary sanctions, trade embargoes and anti-terrorism laws, including, but not limited to, those imposed, administered or enforced from time to time by: (a) the United States of America; including those administered by OFAC, the U.S. State Department, the U.S. Department of Commerce, or through any existing or future Executive Order; (b) the United Nations Security Council; (c) the European Union; (d) the United Kingdom; or (e) any other governmental authorities. “Second Extended Mandatory Conversion Date” means ///[_________________, 20___]///. “Second Option to Extend” means the option to extend the First Mandatory Conversion Date pursuant to Section 3.7. “Secured Obligations” shall have the meaning ascribed to such term in the Deed of Trust. “Set Aside Letter” shall have the meaning ascribed to such term in Section 10.1. “Soils Engineer” means Rockridge Geotechnical, Inc. “Soils Engineering Agreement” means that certain ______________________________. “Sponsor” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. -14- DWT 30207606v4 0088288-000026 “Sponsor Subordination Agreement” shall have the meaning ascribed thereto in the eighth recital to this Loan Agreement. “State” shall mean the State of California. “Subdivision Map” shall have the meaning ascribed to such term in Section 11.11. “Subordinate Lender(s)” means the County, the City, Sponsor and any other subordinate lender now or hereafter approved by Bondowner Representative. “Subordinate Loan(s)” means the County Loan, the City Loan, the Infill Grant Sponsor Loan and any other subordinate loan now or hereafter approved by Bondowner Representative. “Subordinate Loan Document(s)” means, singularly or collectively, as the context may require, the County Loan Documents, the City Loan Documents, the HCD AHSC Documents, the HCD IIG Documents, the Infill Grant Sponsor Loan Documents and any other subordinate loan documents now or hereafter approved by Bondowner Representative. “Subordination Agreement(s)” shall mean, singularly or collectively, as the context may require, the County Subordination Agreement, the City Subordination Agreement, the HCD Subordination Agreement, the Sponsor Subordination Agreement, the Master Lease Subordination Agreement and any other subordination agreement now or hereafter approved by Bondowner Representative . “Surety” shall have the meaning ascribed to such term in Section 10.1. “Swap Agreement” means a “swap agreement” as defined in Section 101 of the Bankruptcy Code, entered into by Borrower and Bondowner Representative (or with another financial institution which is reasonably acceptable to Bondowner Representative), together with all modifications, extensions, renewals and replacements thereof. “Tax Certificate” means the Certificate as to Arbitrage executed by the Issuer and the Borrower, dated as of the Closing. “Taxes” shall have the meaning ascribed to such term in the Note. “TCAC” means the California Tax Credit Allocation Committee. “Terminated Documents” means those documents set forth in Exhibit A to the Bond Purchase Agreement. “Title Insurer” means Old Republic Title Company. “Title Policy” means the Lender’s Policy (or Policies) of Title Insurance as issued by the Title Insurer with respect to the Deed of Trust. “Unrestricted Cash or Cash Equivalents” means cash, depository accounts or short term investments in money market funds or investments in U.S. government securities or securities guaranteed by the U.S. government, none of which shall be subject to any pledge, security interest or restriction on use or disbursement. 1.2 EXHIBITS INCORPORATED. Exhibits A, B, C, D, E and F all attached hereto, are hereby incorporated into this Loan Agreement. ARTICLE 2. ISSUANCE OF BONDS; PAYMENT OF ISSUANCE COSTS -15- DWT 30207606v4 0088288-000026 2.1 ISSUANCE OF BONDS. Upon execution of this Loan Agreement, the other Loan Documents, the Indenture and the Regulatory Agreement, and the occurrence of all conditions precedent to the issuance of the Bonds in such documents, or as soon thereafter as practicable, the Issuer will execute the Bonds and deliver the Bonds to Bondowner Representative, or to its order upon payment of the initi al purchase price thereof and filing with the Bondowner Representative of the opinion of Bond Counsel as to the legality of the Bonds and the furnishing of all other documents required to be furnished before such delivery. The proceeds of the Bonds will b e deposited and disbursed in accordance with the Indenture and this Loan Agreement. 2.2 NO WARRANTY BY ISSUER. BORROWER AGREES THAT THE ISSUER HAS NOT MADE AN INSPECTION OF THE PROPERTY, THE PROJECT OR OF ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, AND THE ISSUER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED OR OTHERWISE, WITH RESPECT TO THE SAME OR THE LOCATION, USE, DESCRIPTION, DESIGN, MERCHANTABILITY, FITNESS FOR USE FOR ANY PARTICULAR PURPOSE, CONDITION OR DURABILITY THEREOF, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY BORROWER. IN THE EVENT OF ANY DEFECT OR DEFICIENCY OF ANY NATURE IN THE PROPERTY, THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER PATENT OR LATENT, THE ISSUER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO. THE PROVISIONS OF THIS SECTION 2.2 HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES OR REPRESENTATIONS BY THE ISSUER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, THE PROJECT OR ANY FIXTURE OR OTHER ITEM CONSTITUTING A PORTION THEREOF, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT. IN ADDITION, BORROWER ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT IT UNDERSTANDS THE NATURE AND STRUCTURE OF THE PROJECT; THAT IT IS FAMILIAR WITH THE PROVISIONS OF ALL OF THE DOCUMENTS AND INSTRUMENTS RELATING TO THE FINANCING OF THE PROPERTY AND THE PROJECT TO WHICH IT OR THE ISSUER IS A PARTY OR OF WHICH IT IS A BENEFICIARY; THAT IT UNDERSTANDS THE RISKS INHERENT IN SUCH TRANSACTIONS, INCLUDING WITHOUT LIMITATION THE RISK OF LOSS OF THE PROJECT; AND THAT IT HAS NOT RELIED ON THE ISSUER FOR ANY GUIDANCE OR EXPERTISE IN ANALYZING THE FINANCIAL OR OTHER CONSEQUENCES OF SUCH FINANCING TRANSACTIONS OR OTHERWISE RELIED ON THE ISSUER IN ANY MANNER EXCEPT TO ISSUE THE BONDS IN ORDER TO PROVIDE FUNDS FOR THE LOAN. 2.3 PAYMENT OF COSTS OF ISSUANCE BY BORROWER. Borrower agrees that it will provide any and all funds required for the prompt and full payment of all costs of issuance of the Bonds not otherwise paid from proceeds of the Bonds, including, but not limited to, the following items: (a) all legal (including Bond Counsel and counsel to Borrower, Issuer, Bondowner Representative and CCRC), abstractors’, title insurance, financial, engineering, environmental, construction services, survey, appraisal and accounting fees and expenses, administrative fees, printing and e ngraving costs and other expenses incurred and to be incurred by Borrower, Issuer, Bondowner Representative and CCRC in connection with issuance of the Bonds; (b) premiums on all insurance required to be secured and maintained during the term of this Loan Agreement; (c) all recording fees and other taxes, charges, assessments, license or registration fees of every nature whatsoever incurred and to be incurred in connection with this financing (other than a tax on the income of Issuer or Bondowner Representative); (d) all initial fees and expenses of the Bondowner Representative and the Issuer (including, without limitation, the Issuer’s initial fee referred to in Section 4A(d) of the Regulatory Agreement); (e) the fees payable to Bondowner Representative pursuant to Section 3.11; -16- DWT 30207606v4 0088288-000026 (f) fees payable to the California Debt Limit Allocation Committee and the California Tax Credit Allocation Committee with respect to the Bonds and the financing of the Project; and (g) other reasonable costs of issuance. ARTICLE 3. THE LOAN 3.1 THE LOAN. The Issuer agrees, upon the terms and conditions herein specified, to lend to Borrower the proceeds of the Bonds, by causing such proceeds to be deposited with the Bondowner Representative in installments corresponding to the successive “draw-down” purchases of the Bonds by the Bondowner Representative. The proceeds of the Bonds shall be disbursed as provided herein and in the Indenture. The obligation of Borrower to repay the Loan shall be evidenced by the Note. Contemporaneously with the issuance of the Bonds, the Issuer will endorse the Note without recourse to the order of the Bondowner Representative, as the assignee of the Issuer. Borrower will repay the Loan in accordance with the provisions of the Note and this Loan Agreement. 3.2 LOAN DISBURSEMENTS. The proceeds of the Bonds shall be disbursed by the Bondowner Representative only in accordance with a written requisition of Borrower approved in writing by the Bondowner Representative, which approval shall be granted by the Bondowner Representative upon satisfactio n or waiver by the Bondowner Representative of the conditions set forth in Article 4 of this Loan Agreement. 3.3 LOAN REPAYMENT AND PAYMENT OF OTHER AMOUNTS. Borrower hereby acknowledges its indebtedness to the Issuer and covenants to repay the Loan, and to pay interest on the amount of the Loan outstanding from time to time in accordance with the following: (a) At any time prior to the Conversion Date but subject to any limitation set forth in the Note, Borrower may, at its option, prepay principal on the Note, in whole or in part, in order to effect a redemption of Bonds pursuant to Section 4.01(a) of the Indenture by paying to Bondowner Representative an amount equal to the principal amount of the Bonds to be redeemed, together with all accrued and unpaid interest through the date of redemption of Bonds on the portion of principal prepaid; provided, however, that such prepayment shall not reduce the principal amount of the Note below the Permanent Loan Amount without the prior consent of Bondowner Representative and CCRC, or unless CCRC requires a further paydown pursuant to the terms of the Bond Purchase Agreement. Borrower shall give Bondowner Representative not less than fifteen (15) days’ advance written notice of its intention to make a prepayment pursuant to this Section 3.3(a). (b) Following the occurrence of a Default under this Loan Agreement and demand by Bondowner Representative for redemption of all of the Bonds pursuant to Section 4.01(b) of the Indenture, Borrower shall immediately pay to Bondowner Representative the full amount of outstanding principal of the Note, together with all accrued and unpaid interest thereon through the date of redemption of Bonds, plus the prepayment charge set forth in Section 3.8(c) below if such redemption occurs on or after the Conversion Date. (c) For so long as any portion of the principal of the Loan is outstanding, Borrower shall pay to Bondowner Representative an amount equal to the interest accrued on the Loan during the previous month at the applicable One Month LIBO Rate determined as provided in section A.2 of the Note, on or before the first Business Day of each month prior to the Conversion Date and at the rate as set forth in Section 3.8 of this Loan Agreement and in section B.1 of the Note on or before the first da y of each month after the Conversion Date subject to Section 11.2 hereof. (d) In the event of damage to or destruction or condemnation of the Project or any part thereof, Borrower shall pay to Bondowner Representative, for redemption of Bonds pursuant to Section 4.01(a) of the Indenture, such portion of the Loan as is required to be paid pursuant to Section 5.6 of the Deed of Trust, plus accrued and unpaid interest through the date of redemption of the Bonds, without premium. -17- DWT 30207606v4 0088288-000026 (e) Borrower agrees to pay, at the same time as the monthly payments pursuant to Section 3.3(c) above, upon an Event of Default whether or not such event has thereafter been cured, one - twelfth (1/12th) of the amount budgeted by Borrower for annual premiums for insurance required to be maintained pursuant to this Loan Agreement and for real estate taxes or other charges for governmental service for the current year (except for utility charges) which shall be disbursed by the Bondowner Representative from time to time. (f) Borrower agrees to make such other payments to Bondowner Representative, in the amounts and at the times necessary to enable the Bondowner Representative, on behalf of the Issuer, to pay all amounts payable with respect to the Bonds when due, whether as principal of, premium, or inte rest on, or otherwise, and whether at maturity or by redemption (including mandatory sinking fund redemption) or acceleration or otherwise. (g) Borrower also agrees to pay, (i) all taxes and assessments of any type or character charged to the Issuer or to the Bondowner Representative affecting the amount available to the Issuer or the Bondowner Representative from payments to be received hereunder or in any way arising due to the transactions contemplated hereby (including taxes and assessments assessed or levi ed by any public agency or governmental authority of whatsoever character having power to levy taxes or assessments) but excluding franchise taxes based upon the capital and/or income of the Bondowner Representative and taxes based upon or measured by the net income of the Bondowner Representative; provided, however, that the Borrower shall have the right to protest any such taxes or assessments and to require the Issuer or the Bondowner Representative, at the Borrower’s expense, to protest and contest any such taxes or assessments levied upon them and that the Borrower shall have the right to withhold payment of any such taxes or assessments pending disposition of any such protest or contest unless such withholding, protest or contest would adversely affect the rights or interests of the Issuer or the Bondowner Representative; (ii) all reasonable fees, charges and expenses of the Bondowner Representative for services rendered under the Indenture, as and when the same become due and payable; (iii) the annual fee of the Issuer, payable as set forth in Section [4A(d) of the Regulatory Agreement, and the reasonable fees and expenses of the Issuer or any agents, attorneys, accountants, consultants selected by the Issuer to act on its behalf in connection with this Loan Agreement, the Regulatory Agreement, the Loan Documents, the Bonds or the Indenture, including, without limitation, any and all reasonable expenses incurred in connection with the authorization, issuance, sale and delivery of the Bonds or in connection with any litigation which may at any time be instituted involving this Loan Agreement, the Regulatory Agreement, the other Loan Documents, the Bonds or the Indenture or any of the other documents contemplated thereby, or in connection with the reasonable supervision or inspection of the Borrower, its properties, assets or operations or otherwise in connection with the administration of the foregoing; and (iv) these obligations and those in Section 11.38 shall remain valid and in effect notwithstanding repayment of the loan hereunder or termination of this Loan Agreement or the Indenture. (h) Borrower agrees: (i) to pay to each of the Bondowner Representative and the Issuer from time to time reasonable compensation for all services rendered by it (including the reasonable compensation, expenses and disbursements of its agents and counsel) under the Indenture and any other agreements relating to the Bonds to which the Bondowner Representative or the Issuer is a party (collectively, “Ordinary Fees and Expenses”); (ii) except as otherwise expressly provided in the Indenture, this Loan Agreement or such other agreements related to the Bonds or the Project, to reimburse the Bondowner Representative and the Issuer upon its request for all reasonable expenses, disbursements and advances (including reasonable counsel fees) incurred or made by the Bondowner Representative or the Issuer (provided that neither the Bondowner Representative nor the Issuer shall be required to make advances) in accordance with any provision of the Indenture or other agreements to which the Bondowner Representative or the Issuer is a party (including, but not limited to, the reasonable compensation and the expenses and disbursements of its agents and counsel and the cost of printing Bonds), except any such expense, disbursement or advance (provided that the Bondowner Representative or the Issuer shall not be required to make advances) as may be attributable to its gross negligence or willful misconduct in the case of the Bondowner Representative, or its willful misconduct in the case of the Issuer, (iii) to pay to an arbitrage consultant reasonable compensation for all services rendered by it, and (iv) to pay to the federal government any rebatable arbitrage required to be paid to the federal government. -18- DWT 30207606v4 0088288-000026 3.4 ADDITIONAL CHARGES. Borrower agrees to pay each and all of the following (collectively, the “Additional Charges”): (a) upon the occurrence of a default under the Indenture or a Default under this Loan Agreement, and upon expiration of all notice a nd cure periods, to or upon the order of the Issuer or the Bondowner Representative, when due, all reasonable fees of the Issuer or the Bondowner Representative for services rendered under the Indenture and any other amounts due under Section 11.2 hereof which are not included in Ordinary Fees and Expenses, and all reasonable fees and charges of any registrars, legal counsel, accountants, engineers, public agencies and others incurred in the performance, on request of the Issuer, of services required under the Indenture or this Loan Agreement for which such persons are entitled to payment or reimbursement, provided that Borrower may, upon notice to the Issuer and without creating a Default hereunder, contest in good faith the necessity or reasonableness of any such services, fees or expenses other than Ordinary Fees and Expenses, but the Issuer’s final decision shall control; (b) (i) all indemnity payments required to be made under this Loan Agreement and the Regulatory Agreement (such indemnity payments being due to the Issuer or Indemnified Party upon written demand therefor and accruing interest at the Default Rate 60 days after notice of demand therefor); (ii) all reasonable expenses (including reasonable legal fees and expenses) incurred by the Issuer in exer cising its rights under this Loan Agreement following a Default; and (iii) all other reasonable expenses incurred by the Issuer in relation to the Project or the Bonds which are not otherwise required to be paid by Borrower under the terms of this Loan Agreement or any separate fee agreement, including costs incurred as a result of a request by Borrower; and (c) interest, at the Default Rate, on all payments not made by Borrower under Section 3.3, this Section 3.4 and Section 3.8 when due, to the parties entitled thereto. 3.5 CONVERSION TO PERMANENT TERM. Upon satisfaction of all of the conditions precedent set forth in Section 3.1 of the Bond Purchase Agreement and the purchase of the Bonds by CCRC pursuant to the Bond Purchase Agreement, the Loan shall be deemed converted from a construction loan to a permanent term loan. The “Conversion Date” shall be the date upon which all of the conditions to Conversion set forth in the Bond Purchase Agreement are satisfied, CCRC purchases the Bonds and the Assignment and Assumption Agreement (as defined in the Bond Purchase Agreement) is recorded in the Official Records . If the Conversion Date does not occur on or before the Mandatory Conversion Date, then the Loan and all sums payable to Bondowner Representative under the Loan Agreement shall be immediately due and payable, unless extended as provided herein. 3.6 FIRST OPTION TO EXTEND. Borrower shall have the option to extend the Mandatory Conversion Date (for the purposes of this section, the “Original Mandatory Conversion Date”) to the First Extended Mandatory Conversion Date, upon satisfaction of the following conditions precedent: (a) Borrower shall provide Bondowner Representative with written notice of Borrower’s request to exercise the First Option to Extend not more than ninety (90) days but not less than thirty (30) days prior to the Original Mandatory Conversion Date; and (b) As of the date of Borrower’s delivery of notice of request to exercise the First Option to Extend, and as of the Original Mandatory Conversion Date, no Default shall have occurred, and no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall have occurred and be continuing, and Borrower shall so certify in writing. (c) Borrower shall pay to Bondowner Representative an extension fee of equal to 0.125% of the total commitment amount of the Loan (whether disbursed or undisbursed), as determined by Bondowner Representative on the First Extended Mandatory Conversion Date; (d) Borrower shall execute or cause the execution of all documents reasonably required by Bondowner Representative to exercise the First Option to Extend and shall deliver to Bondowner -19- DWT 30207606v4 0088288-000026 Representative, at Borrower’s sole cost and expense, such title insurance endorsements reasonably requir ed by Bondowner Representative; (e) There shall have occurred no material adverse change, as determined by Bondowner Representative in its sole discretion, in the financial condition of Borrower, General Partner, or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) the date upon which the financial condition of such party was first represented to Bondowner Representative; (f) Bondowner Representative shall have received evidence satisfacto ry to Bondowner Representative that the Subordinate Loans and all Subordinate Loan Documents are in full force and effect and there is no event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document which could have a material adverse effect upon the Property, the Improvements, or the repayment of the Loan; or if there is any such event or condition, the same shall be fully disclosed to Bondowner Representative and Bondowner Representative shall have approved of the extension of the Original Mandatory Conversion Date despite the same, such approval to be granted or withheld in Bondowner Representative’s sole discretion; (g) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the HUD Documents and the AHAP Contract are in full force and effect and there is no event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document; (h) Borrower shall have provided evidence satisfactory to Bondowner Representative of Borrower’s continued compliance with TCAC achievement dates, including Borrower’s ability to meet the TCAC placed-in-service date; (i) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that, as of the Original Mandatory Conversion Date, no default has occurred under any of the Partnership Documents and that the Partnership Documents and the Investor Limited Partner’s obligations to make capital contributions thereunder are unamended and in full force and effect; (j) The construction of the Project shall be one hundred percent (100%) complete and lien free, as evidenced by Bondowner Representative’s receipt of a mechanic’s lien free endorsement to the Title Policy, a recorded notice of completion, a certificate of occupancy and any other licenses, consents or permits from Governmental Authorities that are necessary to permit lawful residential occupancy of all of the units in the Project and a true copy thereof delivered to Bondowner Representative; (k) If necessary, Borrower shall have extended to a date not earlier than thirty (30) days after the First Extended Mandatory Conversion Date the applicable expiration date of any commitment with respect to the earliest date on which Investor Limited Partner shall be permitted to withdraw from the Borrower under the Partnership Documents, and Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that such commitments are in full force and effect and no defaults have occurred thereunder; (l) Borrower shall have delivered to Bondowner Representative written evidence satisfactory to Bondowner Representative showing that (i) not less than ninety-five percent (95%) of the Units within the Project have been leased to third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents, and (ii) not less than ninety-five percent (95%) of the Units within the Project have been occupied by third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents; (m) The balance in the interest reserve as of the Mandatory Conversion Date, as may be supplemented by Borrower, shall be sufficient to pay interest on the Loan until the First Extended Mandatory Conversion Date as determined by Bondowner Representative; and -20- DWT 30207606v4 0088288-000026 (n) (i) CCRC’s commitment to purchase the Bonds in the Permanent Loan Amount as of the Conversion Date, pursuant to the terms of the Bond Purchase Agreement, shall remain in full force and effect, and (ii) Borrower shall have delivered evidence satisfactory to Bondowner Representative that the date of expiration of CCRC’s obligations under the Bond Purchase Agreement has been extended to a date that is not earlier than the First Extended Mandatory Conversion Date. ///[BANK AND CCRC TO SUPPLEMENT THIS CONDITION UPON FURTHER REVIEW]///. Upon extension of the Mandatory Conversion Date to the First Extended Mandatory Conversion Date pursuant to this Section 3.6, the date upon which the required pay down of the Note to reduce the Note to the Permanent Loan Amount must occur shall be extended to the date of the First Extended Mandatory Conversion Date, and the maturity date of the Note shall be unaffected. Except as modified by the exercise of this First Option to Extend, the terms and conditions of this Loan Agreement and the other Loan Documents as modified and approved by Bondowner Representative shall remain unmodified and in full force and effect. 3.7 SECOND OPTION TO EXTEND. If Borrower shall have exercised the First Option to Extend set forth in Section 3.6 and the Mandatory Conversion Date shall have been extended to the First Extended Mandatory Conversion Date in accordance with the terms and provisions of this Agreement, Borrower shall have the option to extend the First Extended Mandatory Conversion Date to the Second Extended Mandatory Conversion Date, upon satisfaction of the following conditions precedent: (a) Borrower shall provide Bondowner Representative with written notice of Borrower’s request to exercise the Second Option to Extend not more than ninety (90) days but not less than thirty (30) days prior to the First Extended Mandatory Conversion Date; and (b) As of the date of Borrower’s delivery of notice of request to exercise the Second Option to Extend, and as of the First Extended Mandatory Conversion Date, no Default shall have occurred, and no event or condition which, with the giving of notice or the passage of time or both, woul d constitute a Default shall have occurred and be continuing, and Borrower shall so certify in writing. (c) Borrower shall pay to Bondowner Representative an extension fee of equal to 0.125% of the total commitment amount of the Loan (whether disbursed or undi sbursed), as determined by Bondowner Representative on the Second Extended Mandatory Conversion Date; (d) Borrower shall execute or cause the execution of all documents reasonably required by Bondowner Representative to exercise the Second Option to Extend and shall deliver to Bondowner Representative, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Bondowner Representative; (e) There shall have occurred no material adverse change, as determined by Bondowner Representative in its sole discretion, in the financial condition of Borrower, General Partner, or any Guarantor from that which existed as of the later of: (i) the Effective Date; or (ii) the date upon which the financial condition of such party was first represented to Bondowner Representative; (f) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the Subordinate Loans and all Subordinate Loan Documents are in full force and effect and there is no event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document which could have a material adverse effect upon the Property, the Improvements, or the repayment of the Loan; or if there i s any such event or condition, the same shall be fully disclosed to Bondowner Representative and Bondowner Representative shall have approved of the extension of the First Extended Mandatory Conversion Date despite the same, such approval to be granted or withheld in Bondowner Representative’s sole discretion; (g) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that the HUD Documents and the AHAP Contract are in full force and effect and there is no -21- DWT 30207606v4 0088288-000026 event or condition which, with the giving of notice or the passage of time or both, would constitute a material default by any party to any such document; (h) Borrower shall have provided evidence satisfactory to Bondowner Representative of Borrower’s continued compliance with TCAC achievement dates, including Borrower’s ability to meet the TCAC placed-in-service date; (i) Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that, as of the First Extended Mandatory Conversion Date, no default has occurred under any of the Partnership Documents and that the Partnership Documents and the Investor Limited Partner’s obligations to make capital contributions thereunder are unamended and in full force and effect; (j) The construction of the Project shall be one hundred percent (100%) complete and lien free, as evidenced by Bondowner Representative’s receipt of a mechanic’s lien free endorsement to the Title Policy, a recorded notice of completion, a certificate of occupancy and any other licenses, co nsents or permits from Governmental Authorities that are necessary to permit lawful residential occupancy of all of the units in the Project and a true copy thereof delivered to Bondowner Representative; (k) If necessary, Borrower shall have extended to a date not earlier than thirty (30) days after the Second Extended Mandatory Conversion Date the applicable expiration date of any commitment with respect to the earliest date on which Investor Limited Partner shall be permitted to withdraw from the Borrower under the Partnership Documents, and Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that such commitments are in full force and effect and no defaults have occurred thereunder; (l) Borrower shall have delivered to Bondowner Representative written evidence satisfactory to Bondowner Representative showing that (i) not less than ninety-five percent (95%) of the Units within the Project have been leased to third party residential tenants under residential leases complyin g with this Loan Agreement and the Bond Documents, and (ii) not less than ninety-five percent (95%) of the Units within the Project have been occupied by third party residential tenants under residential leases complying with this Loan Agreement and the Bond Documents; (m) The balance in the interest reserve as of the First Extended Mandatory Conversion Date, as may be supplemented by Borrower, shall be sufficient to pay interest on the Loan until the Second Extended Mandatory Conversion Date as determined by Bondowner Representative; and (n) (i) CCRC’s commitment to purchase the Bonds in the Permanent Loan Amount as of the Conversion Date, pursuant to the terms of the Bond Purchase Agreement, shall remain in full force and effect, and (ii) Borrower shall have delivered evidence satisfactory to Bondowner Representative that the date of expiration of CCRC’s obligations under the Bond Purchase Agreement has been extended to a date that is not earlier than the Second Extended Mandatory Conversion Date. ///[BANK AND CCRC TO SUPPLEMENT THIS CONDITION UPON FURTHER REVIEW]/// Upon extension of the First Extended Mandatory Conversion Date to the Second Extended Monthly Conversion Date pursuant to this Section 3.7, the date upon which the required pay down of the Note to reduce the Note to the Permanent Loan Amount must occur shall be extended to the date of the Second Extended Mandatory Conversion Date, and the maturity date of the Note shall be unaffected. Except as modified by the exercise of this Second Option to Extend, the terms and conditions of this Loan Agreement and the other Loan Documents as modified and approved by Bondowner Representative shall remain unmodified and in full force and effect. 3.8 INTEREST RATE, LOAN REPAYMENT AND PREPAYMENT CHARGE AFTER THE CONVERSION DATE. -22- DWT 30207606v4 0088288-000026 (a) Interest Rate. The “First Reset Rate” on the Note shall be a fixed interest rate equal to the First Reset Rate set forth in the Note. From the Conversion Date through the CCRC Takeout Loan Maturity Date, the outstanding principal balance of the Note shall bear interest at the First Reset Rate. For the period beginning on the first day of the month following the month in which the Conversion Date occurs, and on the first day of each month thereafter throughout the balance of the term of the Loan, B orrower shall pay to Bondowner Representative equal monthly installments of principal and interest in an amount sufficient to amortize the Loan over a twenty (20) year period, as more specifically set forth in the Note . BORROWER ACKNOWLEDGES THAT THE AMOUNT OWING PURSUANT TO THE NOTE WILL NOT FULLY AMORTIZE BY THE CCRC TAKEOUT LOAN MATURITY DATE, AND THAT ON THE CCRC TAKEOUT LOAN MATURITY DATE, A SUBSTANTIAL “BALLOON PAYMENT” WILL BE DUE AND PAYABLE. (b) Mandatory Sinking Fund Redemption. Effective as of the Conversion Date, the Bonds shall be subject to a monthly mandatory sinking fund redemption as set forth in Section 4.01(c) of the Indenture corresponding to the monthly payments of principal on the Loan due hereunder. (c) Prepayment Charge. Except as provided below, if the Loan is prepaid at any time after the Conversion Date, whether such prepayment is voluntary, involuntary or upon acceleration of the principal amount of the Loan by Bondowner Representative following a Default, Borrower shall pay to Bondowner Representative on the prepayment date (in addition to all other sums then due and owing to Bondowner Representative under the Loan Documents) a prepayment charge to the extent and as provided in the Note. 3.9 BORROWER’S OBLIGATIONS UNCONDITIONAL. The obligations of Borrower to perform and observe the other agreements on its part contained herein shall be absolute and unconditional and payment of the Loan and Additional Charges and all other payments required of Borrower hereunder or under the Note shall be paid without notice or demand and without set off, counterclaim, or defense for any reason and without abatement or deduction or defense. Borrower will not suspend or discontinue any such payments, will perform and observe all of its other agreements in this Loan Agreement and will not terminate this Loan Agreement for any cause, including, but not limited, to any acts or circumstances that may constitute failure of consideration, destruction or damage to the Project or Borrower’s business, the taking of t he Project or Borrower’s business by condemnation or otherwise, the lawful prohibition of Borrower’s use of the Project or Borrower’s business, the interference with such use by any private person or corporation, the invalidity or unenforceability or lack of due authorization or other infirmity of this Loan Agreement, the lack of right, power or authority of the Issuer to enter into this Loan Agreement, eviction by paramount title, commercial frustration of purpose, bankruptcy or insolvency of the Issuer or the Bondowner Representative, change in the tax or other laws or administrative rulings or actions of the United States of America or of the State or any political subdivision thereof, or failure of the Issuer to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Loan Agreement, or for any other cause whether similar or dissimilar to the foregoing, any present or future law to the contrary notwithstanding, it being the i ntention of the parties hereto that the payment of the Loan and other amounts payable by Borrower hereunder or under the Note shall be paid in full when due without any delay or diminution whatever. 3.10 ASSIGNMENT OF ISSUER’S RIGHTS. Pursuant to the Indenture, the Issuer has assigned the Revenues and has assigned, without recourse or liability, to the Bondowner Representative, certain of the Issuer’s rights under this Loan Agreement and the Note pursuant to Section 5.01 of the Indenture, including the right to receive certain payments hereunder, and hereby directs Borrower to make payments referred to in Sections 3.3(a), (b), (c), (d) and (f), 3.5, and 3.7(a) and (b) hereof and under the Note directly to the Bondowner Representative. Borrower assents to such assignment and will make such payments under this Loan Agreement directly to the Bondowner Representative without defense or set off by reason of any dispute between Borrower, the Issuer, the Bondholders or the Bondowner Representative. 3.11 ADDITIONAL SECURITY INTEREST. To secure payment and performance of all obligations of Borrower hereunder and under the other Loan Documents, Borrower hereby grants and assigns to -23- DWT 30207606v4 0088288-000026 Bondowner Representative a security interest in all of Borrower’s right, title and interest, no w or hereafter acquired, to the payment of money from Bondowner Representative to Borrower under any Swap Agreement. 3.12 LOAN FEES. Borrower shall pay to Bondowner Representative, at Loan closing, a loan fee in an amount equal to __________________ and No/100 Dollars ($___________), and to CCRC, at Loan closing, a loan fee in an amount equal to __________________and No/100 Dollars ($___________) and an application fee equal to Two Thousand and No/100 Dollars ($2,000.00). Bondowner Representative and CCRC shall earn the fees described in this Section 3.11 when paid by Borrower, and such fees shall be nonrefundable. 3.13 LOAN DOCUMENTS. Borrower shall deliver to Bondowner Representative concurrently with this Loan Agreement each of the documents, properly executed and in recordable form, as applicable, described in Exhibit B as Loan Documents, together with those documents described in Exhibit B as Other Related Documents. 3.14 EFFECTIVE DATE. The date of the Loan Documents is for reference purposes only. The Effective Date of delivery and transfer to Bondowner Representative of the security under the Loan Documents and of Borrower’s and Bondowner Representative’s obligations under the Loan Documents shall be the date the Deed of Trust is recorded in the office of the County Recorder of the county where the Property is located. 3.15 CREDIT FOR PRINCIPAL PAYMENTS. Any payment made upon the outstanding principal balance of the Loan shall be credited as of the Business Day received, provided such payment is received by Bondowner Representative no later than 11:00 a.m. (Pacific Standard Time or Pacific Daylight Time, as applicable) and constitutes immediately available funds. Any principal payment received after said time or which does not constitute immediately available funds shall be credited upon such funds having become unconditionally and immediately available to Bondowner Representative. 3.16 FULL REPAYMENT AND RECONVEYANCE. Upon receipt of all sums owing and outstanding under the Loan Documents and the full performance of all other obligations secured by the Deed of Trust, Bondowner Representative shall issue a full reconveyance of the Property and Improvements from the lien of the Deed of Trust; provided, however, that all of the following conditions shall be satisfied at the time of, and with respect to, such reconveyance: (a) Bondowner Representative shall have received all escrow, closing and recording costs, the costs of preparing and delivering such reconveyance and any sums then due and payable under the Loan Documents; and (b) Bondowner Representative shall have received a written release satisfactory to Bondowner Representative of any set aside letter, letter of credit or other form of undertaking which Bondowner Representative has issued to any surety, governmental agency or any other party in connection with the Loan and/or the Property and Improvements. Any repayment shall be without prejudice to Borrower’s obligations under any Swap Agreement between Borrower and Bondowner Representative, which shall remain in full force and effect subject to the terms of such Swap Agreement (including provisions that may require a reduction, modification or early termination of a swap transaction, in whole or in part, in the event of such repayment, and may require Borrower to pay any fees or other amounts for such reduction, modification or early termination), and no such fees or amounts shall be deemed a penalty hereunder or otherwise. 3.17 ISSUER FEE. The annual fee to be paid to the Issuer pursuant to Section ///[4A(a) and 20]/// of the Regulatory Agreement shall be impounded monthly in an amount equal to 1/12th of such annual fees (and, with respect to the first such payment, such other fraction as necessary to fully fund the first payment due following the Closing Date), commencing on the first day of the month following the Closing Date, and amounts so impounded shall be remitted to the Issuer on the date the annual fee is due to it under Section ///[20]/// of each Regulatory Agreement. ARTICLE 4. DISBURSEMENT OF LOAN FUNDS 4.1 CONDITIONS PRECEDENT TO INITIAL DISBURSEMENTS OF PROCEEDS OF THE BONDS. Bondowner Representative’s obligation to consent to the initial disbursement of the proceeds of the Bonds -24- DWT 30207606v4 0088288-000026 held by Bondowner Representative in the Bond Fund in an amount not to exceed $___________ shall be subject at all times to satisfaction of each of the following conditions precedent: (a) Delivery of Documents. The documents listed on Exhibit B, (including without limitation all Loan Documents and all Other Related Documents) shall have been deliv ered to Bondowner Representative in form and substance satisfactory to Bondowner Representative, duly executed (and, if required by Bondowner Representative, acknowledged) by all of the appropriate parties. (b) Recorded Documents. The following documents shall have been duly recorded, in the order indicated below, in the Official Records of the County: (i) the HUD Use Agreement; (ii) the Regulatory Agreement; (iii) the Deed of Trust; (iv) the Assignment of Deed of Trust; (v) the HOME/CDBG Regulatory Agreement; (vi) the County Regulatory Agreement; (vii) the County Deed of Trust; (viii) the City Regulatory Agreement; (ix) the City Notice of Restrictions; (x) the City Deed of Trust; (xi) the County/City Intercreditor Agreement; (xii) the Infill Grant Regulatory Agreement; (xiii) the HUD Subordination Agreement; (xiv) the County Subordination Agreement; (xv) the City Subordination Agreement; (xvi) the HCD Subordination Agreement; (xvii) the Delivery Assurance Deed of Trust; (xviii) the Infill Grant Sponsor Deed of Trust; (xix) the Sponsor Subordination Agreement; (xx) the Master Lease Subordination Agreement; and (xxi) the Payment and Performance Bond. (c) Financing Statements. The Financing Statements described in Exhibit B, items 1.5 and 1.6 shall have been filed with the California Secretary of State, and Bondowner Representative shall have -25- DWT 30207606v4 0088288-000026 received and approved the results of a UCC search conducted and certified by the California Secretary of State. (d) Title Insurance. Borrower shall (at its own expense) have obtained a commitment from the Title Insurer in form and content satisfactory to Bondowner Representative for delivery to the Bondowner Representative of a mortgagee’s policy of title insurance (the “Title Policy”) which complies with the following requirements: (x) the Title Policy shall be issued with respect to the Property, shall show the Deed of Trust as the insured mortgage, shall name the Bondowner Representative as insured, shall be dated as of the date of recording of the Deed of Trust, shall be in an amount not less than the original principal amount of the Bonds, and shall be in form and substance reasonably satisfacto ry to the Bondowner Representative; (y) when originally issued, the Title Policy shall be in form ALTA LP -10 (in 2006 form or other form acceptable to Bondowner Representative) and shall contain such endorsements (2006 forms where applicable and available) as Bondowner Representative may require, including without limitation, ALTA 3.1 Zoning, improved land; ALTA 6 Variable Rate; ALTA 8.1 Environmental; ALTA 9 Comprehensive, unmodified for improved land; ALTA 10.1 Assignment of mortgage with priority; ALTA 17 Access and abut (access to San Pablo Avenue and Kearney Street); ALTA 18 Separate Tax Parcel; ALTA 19 Contiguity (as to Parcels __________________); ALTA 22 Address; ALTA 25 Survey; ALTA 26 Subdivision; ALTA 27 Usury; ALTA 28 Easement; CLTA 101.3 Mechani cs’ liens/No notice of completion; CLTA 104.7 Assignment of Rents; CLTA 112 Bondholder; Special: Utilities; Special: Deletion of Arbitration provisions (paragraph 13 of Conditions); Special: Electronic signatures on policy/endorsements; Special: Doing Business As; and a commitment to issue such further endorsements as Bondowner Representative may require, including without limitation, CLTA 101.2 or CLTA 101.6 Mechanics’ liens/Notice of completion, CLTA 102.5 Foundation without encroachment and CLTA 122 Datedown for draw in such number and at such times as may be required by Bondowner Representative; and (z) the Title Policy shall include a commitment by the Title Company to rewrite the Title Policy into a full ALTA Loan Policy (in 2006 form or other form acc eptable to Bondowner Representative), containing all the endorsements listed above and any such additional endorsements as Bondowner Representative may reasonably require upon completion of construction of the Project. The Title Policy shall insure: (i) that the Borrower possesses a fee simple interest in the Property; (ii) that the Deed of Trust is a valid first lien upon the Property, subject only to Permitted Prior Encumbrances; (iii) that the following standard exceptions be waived and insured: (1) facts which would be disclosed by a comprehensive survey of the Property, (2) mechanic’s, contractors’ or materialmen’s liens and lien claims, and (3) all other exceptions noted in Schedule B, Section I of the Title Policy. (e) Confirmation of Insurance. Bondowner Representative shall have received and approved in form and substance satisfactory to Bondowner Representative all insurance policies, certificates, and any other evidence of insurance coverage that Borrower is required to obtain and maintain pursuant to Article 7 of this Loan Agreement. (f) Opinion Letter. Bondowner Representative and Issuer shall have received (i) an original Bond Counsel approving and tax opinion for the Bonds, in form and content satisfactory to Bondowner Representative and Issuer, addressed to the Bondowner Representative and Issuer, and (ii) an opinion of Borrower’s Counsel addressed to Bondowner Representative and Issuer, in form and content satisfactory to Bondowner Representative and Issuer, which opinion shall state that Bondowner Representative’s successors and assigns as holder of the Note are permitted to rely on the opinion. (g) Delivery of Contracts; Approval of Reports. Bondowner Representative shall have received and approved in form and substance satisfactory to Bondowner Rep resentative: (i) a soils report for the Property; -26- DWT 30207606v4 0088288-000026 (ii) an environmental questionnaire and environmental site assessment with respect to the presence, if any, of Hazardous Materials on the Property; (iii) two sets of the Plans and Specifications, certified as complete by the Architect, together with evidence of all necessary or appropriate approvals of all applicable Governmental Authorities; (iv) copies of any initial study, negative declaration, mitigated negative declaration, environmental impact report, notice of determination or notice of exemption prepared, adopted, certified or filed by or with any Governmental Authority in connection with the Property and Project; and (v) copies of all documents, agreements, instruments, policies and other materials relating to the Project requested by Bondowner Representative, including without limitation, appraisals; all design, architect’s, engineering, brokerage and construction contracts; and surveys, in each case set forth in such detail as Bondowner Representative may require. (h) Payment and Performance Bond as to Construction Contract. Prior to any disbursement of proceeds of the Loan, Borrower shall have delivered a payment and performance bond (the “Payment and Performance Bond”) with respect to the Construction Contract in such forms and amounts as required by Bondowner Representative. (i) Reservation Letter. Bondowner Representative shall have received a photocopy of the Reservation Letter from TCAC. (j) Utilities. Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that all utility services, including, without limitation, gas, water, sewage, electrical and telephone, necessary for the development and occupancy of the Property and Project are available at or within the boundaries of the Property, or Borrower has taken all steps necessary to assure that all such services will be available upon completion of the Project. (k) Payment of Loan Fees. Borrower shall have paid to Bondowner Representative, in good funds, all fees owing pursuant to Section 3.12 and all costs of issuance of the Bonds. (l) Sufficiency of Funds. Bondowner Representative shall have received evidence satisfactory to Bondowner Representative that there will be sufficient funds available to Borrower to complete the Project and cover all costs as shown on the Disbursement Budget attached hereto, whether from the proceeds of the Loan, Subordinate Loans, Capital Contributions or from another source or other sources acceptable to Bondowner Representative. (m) Admission of Investor Limited Partner. Bondowner Representative shall have received and approved in form and content reasonably satisfactory to Bondowner Representative the fully executed Partnership Agreement. The Partnership Agreement shall have been amended in a manner reasonably satisfactory to Bondowner Representative to admit Investor Limited Partner as a limited partner of Borrower and Bondowner Representative shall have received a first priority security interest in (i) the general partnership interest of the General Partner in Borrower ; and (ii) Borrower and General Partner’s interests in the housing tax credits awarded to Borrower, all in form and substance reasonably acceptable to Bondowner Representative. The Partnership Documents shall obligate the Investor Limited Partner to make cash Capital Contributions in at least the amounts and at the times set forth in Section 1.1 above, subject to and in accordance with the terms and conditions of the Borrower’s Partnership Documents (which may include additional conditions precedent in addition to those set above and provide for adjustment of the amount of capital contributions due). (n) Initial Capital Contribution. Borrower has delivered to Bondowner Representative simultaneously with the first disbursement of Bond proceeds, written evidence satisfactory to Bondowner -27- DWT 30207606v4 0088288-000026 Representative of the disbursement of the Initial Capital Contribution from the Investor Limited Partner in accordance with the Partnership Documents (which may occur contemporaneously with the first disbursement of Bond proceeds). Any unused portion of the Initial Capital Contribution shall be utilized as Borrower’s Funds pursuant to the terms and conditions of the Loan Documents, shall be deposited into Borrower’s Funds Account with Bondowner Representative and shall be disburse d by Bondowner Representative to pay Project Costs pursuant to the terms and conditions outlined in the Loan Documents. (o) General Partner Equity Contribution. General Partner shall have made an equity contribution to Borrower in an amount equal to ///[$942,937]/// (the “General Partner Equity Contribution”), the full amount of which shall have been deposited in to the Borrower’s Funds Account the, which General Partner Equity Contribution shall be applied only to pay down the Loan upon satisfaction of the so-called 50% test. (p) Delivery of Permits. Bondowner Representative shall have received and approved in form and content satisfactory to Bondowner Representative evidence of satisfaction of any and all conditions precedent to issuance (other than payment of a fee) of all building permits and similar permits, licenses, approvals, development agreements and other authorizations of Governmental Authorities required in connection with the construction and development of the Property and Project including, but not limited to, all authorizations, (including building permits, annexation agreements, development agreements, subdivision approvals, sewer and water permits, vault permits, encroachment permits, driveway access and curb cut authorizations) and zoning and land use entitlements, and all other approvals, consents, permits and licenses issued or to be issued by any Governmental Authority which are (a) required for the development and construction of the Project in accordance with the Plans and Specifications and in accordance with all applicable laws, ordinances and regulations and (b) capable of being issued through the date of the requested Disbursement, and all of the same shall remain in full force and effect. (q) Environmental Site Assessment. Bondowner Representative shall have received and approved in form and substance satisfactory to Bondowner Representative: (i) an environmental questionnaire and environmental site assessment with respect to the presence, if any, of Hazardous Materials on the Property and I mprovements; (ii) copies of all agreements which are material to completion of the Improvements; and (iii) copies of any initial study, negative declaration, mitigated negative declaration, environmental impact report, notice of determination or notice of exemption prepared, adopted, certified or filed by or with any governmental agency in connection with the Property and Improvements. (r) Subordinate Loans. (i) On or prior to the Closing Date, Borrower shall have obtained and received proceeds of the County Loan in an amount equal to $2,070,000, which shall be consistent with the County Loan Agreement and shall have been disbursed to pay Project Costs shown on the Disbursement Budget, and delivered evidence satisfactory to Bondowner Representative thereof. (ii) Borrower shall have obtained and received one hundred percent (100%) of the proceeds of the City Loan in the amount of $300,000, which shall be consistent with the City Loan Agreement and shall have been disbursed to pay Project Costs shown on the Disbursement Budget, and delivered evidence satisfactory to Bondowner Representative thereof. (s) Approval of Contractor and Construction Agreement. Bondowner Representative shall have approved: (i) the selection of Contractor as the general contractor for the Project; and (ii) the Construction Agreement, in form and substance, along with a cost and plan review and development budget for the Project prepared in accordance with the Construction Agreement. Bondowner Representative shall have received a financial analysis of Contractor satisfactory to Bondowner Representative in form and substance. -28- DWT 30207606v4 0088288-000026 (t) Construction. Bondowner Representative shall have received a copy of the Notice to Proceed, evidence of all necessary or appropriate approvals of all applicable governmental authorities in connection with the Plans and Specifications, and all building permits and similar permits, licenses, approvals, development agreements and other authorizations of governmental authorities required in connection with the construction and developme nt of the Property and Project including, but not limited to, all authorizations (including building permits, annexation agreements, development agreements, subdivision approvals, sewer and water permits, vault permits, encroachment permits, driveway acces s and curb cut authorizations) and zoning and land use entitlements, and all other approvals, consents, permits and licenses issued or to be issued by any governmental authority which are (a) required for the development, construction of the Project in accordance with the Plans and Specifications and in accordance with all applicable laws, ordinances and regulations and (b) capable of being issued through the date of the requested Disbursement, and all of the same shall remain in full force and effect. (u) RETECHS Review. Bondowner Representative shall have received a report from Bondowner Representative’s RETECHS department (“RETECHS”) certifying that (i) RETECHS has found no issues with the Property requiring that additional action be taken with respect to th e Property prior to Issuer’s receipt of the Property as collateral for the Loan and assignment thereof to Bondowner Representative, and (ii) the Project can completed in accordance with the Plans and Specifications and the Construction Agreement by the Completion Date. In addition, RETECHS shall have received and approved (1) an abatement plan with respect to the asbestos and lead based paint (collectively, Regulated Building Materials”) located on the Property, and (2) an estimated budget and schedule for performing the abatement work with respect to the Regulated Building Materials. (v) HUD Documents. Borrower shall have delivered to Bondowner Representative, each in form and substance approved by Bondowner Representative, in its sole and absolute discretion: (i) That certain RAD New Construction Agreement (for PBVRAD conversions from Public Housing) (the “RAD New Construction Agreement”), pursuant to which Borrower, Contract Administrator and HUD agree to enter into a Section 8 Housing Assistance Payments Contract, including the Rider(s) attached thereto, providing for Section 8 Housing Assistance Payments for at least twenty-three (23) units at the Property (“RAD HAP Contract”); (ii) Rental Assistance Demonstration Use Agreement between HUD and Borrower (“HUD Use Agreement”); and (iii) A RAD Conversion Commitment among Borrower, the Housing Authority of Contra Costa County and HUD, relating to the Property (“RCC; and together with the RAD New Construction Agreement, the RAD HAP Contract and HUD Use Agreement, the “HUD Documents”). (w) AHAP Contract. (i) Borrower shall have delivered to Bondowner Representative a fully executed Agreement to Enter into a Housing Assistance Payments Contract, in a form approved by Bondowner Representative in its sole discretion (the “AHAP Contract”), pursuant to which Contract Administrator agrees to enter into a Section 8 Housing Assistance Payments Contract with Borrower and provide Section 8 Housing Assistance Payments to Borrower following the completion of the Improvements for a minimum of thirty-nine (39) units and for a term of not less than fifteen (15) years with an automatic extension option for an additional fifteen (15) years, (ii) Borrower shall have granted a collateral assignment of the AHAP to Bondowner Representative pursuant to that certain Assignment of Housing Assistance Payment Contract and Housing Assistance Payments dated as of even date herewith executed by Borrower in favor of Bondowner Representative (“Assignment of AHAP”) and Contract Administrator shall have consented to such Assignment of HAP in a form approved by Bondowner Representative in its sole discretion (“Consent to Assignment of AHAP”). (x) Master Leases. Bondowner Representative and CCRC shall have received and approved an executed copy of the Master Leases. -29- DWT 30207606v4 0088288-000026 4.2 CONDITION PRECEDENT TO ANY POST-CLOSING DISBURSEMENT. Bondowner Representative’s obligation to make “drawdown” purchases of Bonds and corresponding disbursements of the Loan, after the first purchase and disbursement in the amount set forth in Section 4.1 above , shall be subject to satisfaction (or waiver by Bondowner Representative, in its sole discretion) of the following conditions precedent: (a) No Default. There shall exist no Default, as defined in this Loan Agreement, or Default as defined in any of the other Loan Documents or in the Other Related Documents, or event, omission or failure of condition which would constitute a Default after notice or lapse of time, or both. (b) Loan “in balance”. Any undisbursed Loan funds and all sums, if any, to be provided by Borrower as shown in Exhibit C, shall be at all times equal to or greater than the amount which Bondowner Representative from time to time determines necessary to: (i) pay, through completion, all costs of development, construction, marketing and sale or leasing of the Property and Improvements in accordance with the Loan Documents; (ii) pay all sums which may accrue under the Loan Documents prior to Conversion; and (iii) enable Borrower to perform and satisfy all of the covenants of Borrower contained in the Loan Documents effective prior to Conversion. If Bondowner Representative determines at any time that the undisbursed Loan funds are insufficient for said purposes, Borrower shall deposit the amount of such deficiency in the Borrower’s Funds Account within fifteen (15) days of Bondowner Representative’s written demand. (c) Subordinate Loan. (i) Borrower shall have obtained and received proceeds of the County Loan in an amount equal to $2,070,000, which shall be consistent with the County Loan Agreement and shall have been disbursed to pay Project Costs shown on the Disbursement Budget, and delivered evidence satisfactory to Bondowner Representative thereof. (ii) Borrower shall have obtained and received one hundred percent (100%) of the proceeds of the City Loan in the amount of $300,000, which shall be consistent with the City Loan Agreement and shall have been disbursed to pay Project Costs shown on the Disbursement Budget, and delivered evidence satisfactory to Bondowner Representative thereof. (iii) From and after the completion of the Infill Grant Work, Bondowner Representative’s approval of any additional disbursements of Loan proceeds shall be further conditioned upon the disbursement of not less than ///[$1,399,547]/// of the Infill Grant Sponsor Loan and the application of such proceeds to the payment of Project Costs shown on the Disbursement Budget. 4.3 CONDITIONS PRECEDENT TO ANY DISBURSEMENT. Bondowner Representative’s obligation to make any “drawdown” purchase of Bonds and corresponding Disbursement of the Loan (including the first Disbursement and the final Disbursement) shall be subject to the satisfaction (or waiver by Bondowner Representative, in its sole discretion) of the following conditions precedent: (a) Application for Payment. Bondowner Representative shall have received and approved an Application for Payment (as defined in the Disbursement Plan) executed by Borrower stating the amount of the Disbursement then requested and meeting the requirements of the Disbursement Plan attached hereto as Exhibit D, and all other documents, instruments, agreements, certificates, lien waivers and other items required thereunder. (b) Disbursement Plan Conditions. All of the conditions precedent to the requested Disbursement set forth in the Disbursement Plan attached hereto as Exhibit D shall have been satisfied. -30- DWT 30207606v4 0088288-000026 (c) Compliance with Financial Requirements Analysis; Borrower’s Funds. Borrower shall be in compliance with its obligations under Section 4.6 and 4.7 of this Loan Agreement. To the extent that Borrower is obligated to deposit Borrower’s Funds into the Borrower’s Funds Account pursuant to those Sections, such Borrower’s Funds shall have been fully disbursed as a condition to any obligation of Bondowner Representative to make further disbursement of proceeds of the Loan. (d) Bondowner Representative Inspections. Bondowner Representative shall have determined, based upon such inspections and examinations of the progress of construction of the Project as Bondowner Representative shall elect in its sole judgment to conduct from time to time, that construction of the Project is proceeding in substantial conformity with the Plans and Specifications, as modified by change orders with respect to which Borrower has complied with Section 5.5. Borrower shall have paid all of the costs and expenses reasonably incurred by Bondowner Representative in any such inspection and examination. (e) Government Inspections. If Bondowner Representative shall so require, any portion of the Project completed through the date of the requested Disbursement which requires inspection or certification by municipal or other governmental authorities shall have been inspected and certified as complete and all other necessary approvals shall have been duly issued and Bondowner Representative shall have received true and correct copies of all such inspections, certificates and approvals or Bondowner Representative shall have received other evidence, in form and content reasonably satisfactory to Bondowner Representative, that the Project has been constructed in such a manner as to be in compliance with any such inspections, certificates and approvals. (f) Title Endorsements. Bondowner Representative shall have received such endorsements and binders to the Title Policy as Bondowner Representative may require (including wit hout limitation endorsements confirming the continuing priority of the Deed of Trust with respect to such Disbursement, and endorsements confirming that no encroachments exist on the Property or adjoining property). Without limitation upon the generality of the foregoing, Bondowner Representative shall not be required to consent to any Disbursement after the foundations of any of the buildings that form part of the Project have been installed, or at any time for any item other than foundation and pre -foundation items, unless and until the Bondowner Representative has been furnished, at the sole cost of Borrower, such endorsements to the Title Policy as Bondowner Representative may require, guaranteeing in effect that the foundations of such buildings have been located and constructed within the boundary lines of the Property and that the foundations do not encroach onto any easements in violation of the terms of any recorded documents related to such easements. Bondowner Representative shall be furnished, at no cost to it, such surveys and certificates as may be required by the title insurance company in connection with the issuance of such endorsement. (g) Mechanics’ Liens; Stop Notices. No mechanic’s lien shall have been recorded against the Property and no stop notice shall have been served upon Borrower, Issuer or Bondowner Representative (unless there has been issued a surety bond, or such other collateral as is satisfactory to Bondowner Representative, adequate to release the Project from the lien thereof in accordance with this section), and Bondowner Representative shall have no reasonable cause to believe that the requested Disbursement will be junior in priority of lien to any mechanics’ or material suppliers’ lien or to any intervening or other lien upon the Property; if a claim of lien is recorded which affects the Property or Project or a bonded stop notice is served upon Borrower, Issuer or Bondowner Representative, Borrower shall fully comply with Section 5.8. (h) Compliance With Bond and Loan Documents. Borrower shall have complied with all of the terms and conditions imposed by the Indenture and this Loan Agreement in connection with such Disbursement and Bondowner Representative shall have received a certificate to that effect signed by Borrower. (i) No Default; Compliance with Bond Documents. There shall exist no Default, as defined in this Loan Agreement, or Event of Default as defined in any of the other Bond Documents and Loan Documents or in the other Related Documents (subject to all applicable notice and cure periods), or event -31- DWT 30207606v4 0088288-000026 requiring mandatory redemption of the Bonds or event which, with the giving of notice or the passage of time, or both, could be any Default or event requiring mandatory redemption of the Bonds, and Borrower shall have performed all of its obligations under this Loan Agreement and complied with all of the terms and conditions imposed by the Indenture and this Loan Agreement in connection with such Disbursement and, if Bondowner Representative shall so require, Bondowner Representative shall have received a certificate to that effect signed by Borrower. (j) Representations and Warranties. All representations and warranties contained in this Loan Agreement shall be true and correct in all material respects as of the date of the Disbursement, and Bondowner Representative shall have received a certificate restating each of such representations and warranties as true and correct as of the date of the Disbursement. (k) Full Force and Effect. Each of the Bond Documents and Loan Documents sha ll remain in full force and effect, binding upon all parties thereto. (l) Workmanship. All work performed to date in construction of the Project shall have been accomplished in a good workmanlike manner and in accordance with the Plans and Specifications. (m) Asbestos and Lead-Based Paint. No later than the commencement of the construction of the Improvements at the Property, Borrower shall deliver to Bondowner Representative a report, acceptable to Bondowner Representative in form and substance, containing the results of asbestos and lead-based paint testing with regard to the disposition of contaminated materials in connection with the demolition of the previously existing structures on the Property. (n) Construction. Bondowner Representative shall have received a copy of evidence of all necessary or appropriate approvals of all applicable governmental authorities in connection with the Plans and Specifications, and all building permits and similar permits, licenses, approvals, development agreements and other authorizations of governmental authorities required in connection with the construction and development of the Property and Project including, but not limited to, all authorizations, (including building permits, annexation agreements, development agreements, subdivision approvals, sewer and water permits, vault permits, encroachment permits, driveway access and curb cut authorizations) and zoning and land use entitlements, and all other approvals, consents, permits and licenses issued or to be issued by any governmental authority which are (a) required for the development and construction of the Project in accordance with the Plans and Specifications and in accordance with all applicable laws, ordinances and regulations and (b) capable of being issued through the date of the requested Disbursement, and all of the same shall remain in full force and effect. 4.4 ACCOUNT, PLEDGE AND ASSIGNMENT, AND DISBURSEMENT AUTHORIZATION. The proceeds of the Bonds and Borrower’s Funds, when qualified for disbursement, shall be disb ursed to or for the benefit or account of Borrower under the terms of this Loan Agreement; provided, however, that any direct disbursements from the proceeds of the Bonds which are made by means of wire transfer, shall be subject to the provisions of Section 4.8 below. Disbursements hereunder may be made by Bondowner Representative upon the written request of Linda Mandolini, Jan Peters or Corinne Morrison, who have each been authorized by Borrower to request such disbursements, until such time as written notice of Borrower’s revocation of such authority is received by Bondowner Representative at the address shown in Exhibit D. As additional security for Borrower’s performance under the Loan Documents, Borrower hereby irrevocably pledges and assigns to Bondowner Representative all monies at any time deposited in the Account. 4.5 BORROWER’S FUNDS ACCOUNT, PLEDGE AND ASSIGNMENT. Except as otherwise provided in this Loan Agreement, all of the Borrower’s Funds which are deposited with Bondowner Representative by Borrower as shown in Exhibit C, or any other provision of the Loan Documents, shall be placed in the Borrower’s Funds Account with, and controlled by, Bondowner Representative for disbursement under this Loan Agreement. All Borrower’s Funds shall be disbursed prior to any Proceeds of the Bonds funds being disbursed. As additional security for Borrower’s performance under the Loan Documents, Borrower hereby irrevocably pledges and assigns to Bondowner Representative, and grants a security interest to Bondo wner Representative in and to, all monies at any time deposited in the Borrower’s Funds Account. -32- DWT 30207606v4 0088288-000026 4.6 FINANCIAL REQUIREMENTS ANALYSIS. Borrower shall apply proceeds of the Loan in accordance with the Financial Requirements Analysis attached hereto as Exhibit C. Promptly and in any event within ten (10) days after Borrower’s discovery that the Financial Requirements Analysis does not accurately project the costs which have been and will be incurred in connection with development of the Project in accordance wi th the Plans and Specifications, Borrower shall notify Bondowner Representative of the discrepancy and shall submit to Bondowner Representative a revised budget of costs of development of the Project. 4.7 BALANCING. Borrower agrees to keep the Financial Requirements Analysis “in balance” at all times prior to the Conversion Date. The Financial Requirements Analysis is not “in balance” if any undisbursed principal of the Loan together with all sums, if any, to be provided by Borrower , any undisbursed portion of the ___________ Capital Contribution and any undisbursed Subordinate Loan proceeds, as shown in Exhibit C, are not at all times equal to or greater than the amount which Bondowner Representative from time to time reasonably determines necessary to: (i) complete each line item category as contained on Exhibit C; (ii) pay, through completion, all costs of development, construction, operation and leasing of the Project in accordance with the Loan Documents; (iii) pay all sums which may become payable under the Loan Documents and Other Related Documents; and (iv) enable Borrower to perform and satisfy all of the covenants of Borrower contained in the Loan Documents. If Bondowner Representative reasonably determines at any time that the Financial Requirements Analysis is not “in balance”, Borrower shall provide the amount of such deficiency to Bondowner Representative for deposit into Borrower’s Funds Account. 4.8 FUNDS TRANSFER DISBURSEMENTS. Borrower hereby authorizes Bondowner Representative to disburse the proceeds of any Loan(s) made by Bondowner Representative or its affiliate pursuant to the Loan Documents as requested by an authorized representative of the Borrower to any of the accounts designated in Exhibit F. Borrower agrees to be bound by any transfer request: (i) authorized or transmitted by Borrower; or, (ii) made in Borrower’s name and accepted by Bondowner Representative in good faith and in compliance with these transfer instructions, even if not properly authorized by Borrower. Borrower further agrees and acknowledges that Bondowner Representative may rely solely on any bank routing number or identifying bank account number or name provided by Borrower to effect a wire or funds transfer even if the information provided by Borrower identifies a different bank or account holder than named by Borrower. Bondowner Representative is not obligated or required in any way to take any actions to detect errors in information provided by Borrower. If Bondowner Representative takes any actions in an attempt to detect errors in the transmission or content of transfer or requests or takes any actions in an attempt to detect unauthorized funds transfer requests, Borrower agrees that no matter how many times Bondowner Representative takes these actions Bondowner Representative will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall not become any part of the transfer disbursement procedures authorized under this provision, the Loan Documents, or any agreement between Bondowner Representative and Borrower. Borrower agrees to notify Bondowner Representative of any errors in the transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after Bondowner Representative’s confirmation to Borrower of such transfer. Bondowner Representative will, in its sole discretion, determine the funds transfer system and the means by which each transfer will be made. Bondowner Representative may delay or refuse to accept a funds transfer request if the transfer would: (i) violate the terms of this authorization; (ii) require use of a bank unacceptable to Bondowner Representative or prohibited by government authority; (iii) cause Bondowner Representative to violate any Federal Reserve or other regulatory risk control program or guideline; or (iv) otherwise cause Bondowner Representative to violate any applicable law or regulation. Bondowner Representative shall not be liable to Borrower or any other parties for (i) errors, acts or failures to act of others, including other entities, banks, communications carriers or clearinghouses, through which Borrower’s transfers may be made or information received or transmitted, and no such entity shall be deemed an agent o f the Bondowner Representative; (ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of government, labor disputes, failures in communications networks, legal constraints or other events beyond Bondowner Representative’s control; or (iii) any special, consequential, indirect or punitive damages, whether or not (a) any claim for these damages is based on tort or contract or (b) Bondowner Representative or Borrower knew or should have known t he likelihood of these damages in any situation. Bondowner Representative makes no representations or warranties other than those expressly made in this Loan Agreement. -33- DWT 30207606v4 0088288-000026 4.9 LOAN DISBURSEMENTS. Subject to the conditions set forth in Sections 4.1, 4.2, 4.3 and 4.11, the proceeds of the Bonds and Borrower’s Funds shall be disbursed in accordance with the terms and conditions of Exhibit D. Disbursements made after the deposit of Borrower’s Funds shall be made first from the Borrower’s Funds Account until depleted, unless needed to qualify for the “50% bond test.” Disbursements of proceeds of the Bonds and Borrower’s Funds shall be made, upon satisfaction or waiver of the conditions set forth in Sections 4.1, 4.2, 4.3 and 4.11, into the Account. All disbursement s shall be held by Borrower in trust and applied by Borrower solely for the purposes for which the funds have been disbursed. Bondowner Representative has no obligation to monitor or determine Borrower’s use or application of the disbursements. 4.10 CONDITIONS TO THE OBLIGATIONS OF THE ISSUER. The obligations of the Issuer to issue and deliver the Bonds on the Closing Date shall be subject, at the option of the Issuer, to the performance by the Bondowner Representative and the Borrower of their respective obl igations to be performed hereunder and under the Indenture at or prior to the Closing Date and to the following additional conditions: (a) Each of the Indenture, this Loan Agreement, the Note, the Tax Certificate and the Regulatory Agreement shall have been executed by the parties thereto; (b) No order, decree, injunction, ruling or regulation of any court, regulatory agency public board or body shall have been issued, nor shall any legislation have been enacted, with the purpose or effect, directly or indirectly of prohibiting the offering, sale or issuance of the Bonds as contemplated in the Indenture herein; and (c) The conditions precedent set forth in Section 3.01 of the Indenture and in Sections 4.1 and 4.3 hereof shall have been satisfied. ARTICLE 5. CONSTRUCTION 5.1 COMMENCEMENT AND COMPLETION OF CONSTRUCTION. Borrower shall commence construction of the Improvements without delay after the Effective Date, and shall complete construction of the Improvements on or before the Completion Date, and shall obtain and deliver to Bondowner Representative a copy of a certificate of occupancy issued by the appropriate governmental authorities for the Improvements at the Project. 5.2 FORCE MAJEURE. The time within which construction of the Improvements must be completed shall be extended for a period of time equal to the period of any delay directly affecting construction which is caused by fire, earthquake or other acts of God, strike, lockout, acts of public enemy, riot, insurrection, or governmental regulation of the sale or transportatio n of materials, supplies or labor; provided, however, that Borrower shall furnish Bondowner Representative with written notice satisfactory to Bondowner Representative evidencing any such delay within ten (10) days from the occurrence of any such delay. I n no event shall the time for completion of the Improvements be extended beyond the earlier of the Mandatory Conversion Date or more than sixty (60) days beyond the Completion Date without the prior written consent of Bondowner Representative. 5.3 CONSTRUCTION AGREEMENT. Borrower and Contractor have entered into the Construction Agreement pursuant to the terms and conditions of which Contractor is to construct the Improvements. Borrower shall require Contractor to perform in accordance with the terms of the Construction Agreement and shall not amend, modify or alter the responsibilities of Contractor under the Construction Agreement without Bondowner Representative’s prior written consent. Borrower shall execute, upon Bondowner Representative’s request, an assignment of Borrower’s rights under the Construction Agreement to Bondowner Representative as security for Borrower’s obligations under this Loan Agreement and the other Loan Documents and shall cause the Contractor to consent to any such assignment. 5.4 ARCHITECT’S AGREEMENT. Borrower and Architect have entered into the Architect’s Agreement pursuant to which Architect is to design the construction of the Improvements. Borrower shall require Architect to perform in accordance with the terms of the Architect’s Agreement and shall not amend, modify or alter the responsibilities of Architect under the Architect’s Agreement without Bondowner Representative’s prior written -34- DWT 30207606v4 0088288-000026 consent. Upon Bondowner Representative’s request, Borrower shall execute an assignment of the Architect’s Agreement and the Plans and Specifications to Bondowner Representative as additional security for Borrower’s performance under this Loan Agreement and the other Loan Documents and shall cause the Architect to consent to any such assignment. 5.5 PLANS AND SPECIFICATIONS. (a) Changes; Bondowner Representative Consent. Except as otherwise provided in this Loan Agreement, Borrower shall not make any changes in the Plans and Specifications without Bondowner Representative’s prior written consent if such change: (i) constitutes a material change in the building material or equipment specifications, or in the architectural or structural design, value or quality of any of the Improvements; (ii) would result in an increase or decrease of construction costs in excess of _________________________ and No/100th Dollars ($___________.00) for any single change or in excess of _________________________ and No/100th Dollars ($___________.00) ///[SUBJECT TO CONFIRMATION OF CHANGE ORDER THRESHOLDS IN THE LPA]/// for all such changes; or (iii) would adversely affect the structural integrity, quality of building materials, or overall efficiency of operating systems of the Improvements. Without limiting the above, Bondowner Representative agrees that Borrower may make minor changes in the Plans and Specifications without Bondowner Representative’s prior written consent, provided that such changes do not violate any of the conditions specified herein. Borrower shall at all times maintain, for inspection by Bondowner Repre sentative, a full set of working drawings of the Improvements. (b) Changes; Submission Requirements. Borrower shall submit any proposed change in the Plans and Specifications to Bondowner Representative at least ten (10) days prior to the commencement of construction relating to such proposed change whether or not such change is subject to Bondowner Representative’s consent. Requests for any change which requires consent shall be accompanied by working drawings and a written description of the proposed change, submitted on a change order form acceptable to Bondowner Representative, signed by Borrower and, if required by Bondowner Representative, also by the Architect and the Contractor. At its option, Bondowner Representative may require Borrower to provide: (i) evidence satisfactory to Bondowner Representative of the cost and time necessary to complete the proposed change; (ii) a deposit in the amount of any increased costs into Borrower’s Funds Account; and (iii) a complete set of “as built” Plans and Specifications for the completed Improvements. (c) Consent Process. Borrower acknowledges that Bondowner Representative’s review of any changes and required consent may result in delays in construction and hereby consents to any such delays. (d) Final Plans and Specifications. Upon completion of the Improvements, Borrower shall deliver to Bondowner Representative within ten (10) days a set of final Plans and Specifications. 5.6 CONTRACTOR AND CONSTRUCTION INFORMATION. Within ten (10) days of Bondowner Representative’s written request, Borrower shall deliver to Bondowner Representative from time to time in a form acceptable to Bondowner Representative: (a) a list detailing the name, address and phone number of each contractor, subcontractor and material supplier to be employed or used for the construction of the Improvements together with the dollar amount, including changes, if any, of each contract and subcontract, and the portion thereof, if any, paid through the date of such list; (b) copies of each contract and subcontract identified in such list, including any changes thereto; (c) a cost breakdown of the projected total cost of constructing the Improvements, and that portion, if any, of each cost item which has been incurred; and (d) a construction progress schedule detailing the progress of construction and the projected sequencing and completion time for uncompleted work, all as of the date of such schedule. Borrower agrees that Bondowner Representative may disapprove any contractor, subcontractor or material suppli er which, in Bondowner Representative’s good faith determination, is deemed financially or otherwise unqualified; provided, however, that the absence of any such disapproval shall not constitute a warranty or representation of -35- DWT 30207606v4 0088288-000026 qualification by Bondowner Representative. Bondowner Representative may contact any such contractor, subcontractor or material supplier to discuss the course of construction. 5.7 PROHIBITED CONTRACTS. Without Bondowner Representative’s prior written consent, Borrower shall not contract for any materials, furnishings, equipment, fixtures or other parts or components of the Improvements, if any third party shall retain any ownership interest (other than lien rights created by operation of law) in such items after their delivery to the Pro perty and Improvements. Borrower shall have five (5) Business Days to effect the removal of any such retained interest. 5.8 LIENS AND STOP NOTICES. If a claim of lien is recorded which affects the Property or Improvements or a bonded stop notice is served upon Issuer or Bondowner Representative, Borrower shall, within thirty (30) calendar days of such recording or service or within fifteen (15) calendar days of Bondowner Representative’s demand, whichever occurs first: (a) pay and discharge the claim of lien or bonded stop notice; (b) effect the release thereof by recording or delivering to Bondowner Representative a surety bond in sufficient form and amount; or (c) provide Issuer and Bondowner Representative with other assurances which Issuer or Bondowner Representative deems, in its sole discretion, to be satisfactory for the payment of such claim of lien or bonded stop notice and for the full and continuous protection of Issuer and Bondowner Representative from the effect of such lien or bonded stop notice. Borrower shall promptly pay or otherwise discharge all taxes, claims and liens for labor done, and for materials and services furnished, which may affect the Property. Borrower shall keep the Property free of all liens, claims, charges or encumbrances. Borrower shall have the right to contest in good faith any taxes, claim or lien by appropriate proceedings on the terms and conditions set forth in the Deed of Trust. 5.9 CONSTRUCTION RESPONSIBILITIES. Borrower shall construct the Improvements in a workmanlike manner according to the Plans and Specifications and the recommendations of any soils or engineering report approved by Bondowner Representative. Borrower shall comply with all applicable laws, ordinances, rules, regulations, building restrictions, recorded covenants and restrictions, and requirements of all regulatory authorities having jurisdiction over the Property or Improvements. Borrower shall be solely responsible for all aspects of Borrower’s business and conduct in connection with the Property and Improvements, including, without limitation, for the quality and suitability of the Plans and Specifications and their compliance with all governmental requirements, the supervision of the work of construction, the qualifications, financial condition and performance of all architects, engineers, contractors, material suppliers, consultants and property managers, and the accuracy of all applications for payment and the proper application of all disbursements. Neither Issuer nor Bondowner Representative is obligated to supervise, inspect or inform Borrower or any third party of any aspect of the construction of the Improvements or any other matter referred to above. 5.10 ASSESSMENTS AND COMMUNITY FACILITIES DISTRICTS. Without Bondowner Representative’s prior written consent, Borrower shall not cause to become effective or otherwise consent to the formation of any assessment district or community facilities district which includes all or any part of the Property and Project pursuant to: (a) the Mello-Roos Community Facilities act of 1982; (b) the Municipal Improvement Act of 1913; or (c) any other comparable or similar statute or regulation. Borrower shall not cause or otherwise consent to the levying of special taxes or assessments against the Property and Project by any such assessment district or community facilities district. 5.11 DELAY. Borrower shall promptly notify Bondowner Representative in writing of any event causing more than a five (5) day delay or interruption of construction work, or the timely completion of construction work. The notice shall specify the particular work delayed, and the cause and period of each delay. 5.12 INSPECTIONS. Bondowner Representative shall have the right, including after Conversion, to enter upon the Property at all reasonable times and upon reasonable notice to inspect the Project and the construction work and to verify information disclosed or required pursuant to this Loan Agreement. If Bondowner Representative in its reasonable judgment determines that any work or mate rials fail to conform to the approved Plans and Specifications or sound building practices, or that they otherwise depart from any of the requirements of this Loan Agreement, Bondowner Representative may require the work to be stopped and withhold its consent to further disbursements of proceeds of the Loan and Borrower’s Funds until the matter is corrected. If this occurs, Borrower must correct the work to Bondowner Representative’s reasonable satisfaction promptly and, at Bondowner Representative’s request, halt all other work pending completion of such corrective work. No such action by -36- DWT 30207606v4 0088288-000026 Bondowner Representative will affect Borrower’s obligation to complete the Project in substantial conformity with the Plans and Specifications on or before the Completion Date. Bondowner Representative has no duty to visit Project site, to supervise or observe construction activities or to examine any books or records. Any site visit, observation or examination by Bondowner Representative is solely for the purpose of prot ecting Bondowner Representative’s rights and interests, and may not be relied upon by Borrower or by any third party as a representation or warranty of compliance with this Loan Agreement or any other agreement. No site visit, observation or examination by Bondowner Representative will impose any liability on Bondowner Representative with respect to the adequacy of the design or construction of the Project or result in a waiver of any default of Borrower or be a representation that Borrower is or will be in compliance with the Plans and Specifications, that the construction work is free from defective materials or workmanship, or that the construction work complies with all applicable Requirements. Neither Borrower nor any other party is entitled to rely on any site visit, observation or examination by Bondowner Representative. Bondowner Representative owes no duty of care to protect Borrower or any other party against, or to inform Borrower or any other party of, any negligent or defective design or construction of the Project or any other adverse condition affecting the Property. 5.13 SURVEY. Upon Bondowner Representative’s written request, Borrower shall promptly deliver to Bondowner Representative: (a) a perimeter survey of the Property; (b) upon completion of the foundations of the Improvements, a survey showing the location of the Improvements on the Property and confirming that the Improvements are located entirely within the Property and do not encroach upon any easement, adjoining property or breach or violate any governmental requirement; and (c) upon completion of the Improvements, an as-built survey acceptable to a title insurer for purposes of issuing an ALTA policy of title insurance. All such surveys shall be performed and certified by a licensed engineer or surveyor acceptable to the Title Insurer. 5.14 PAYMENT AND PERFORMANCE BONDS. Borrower shall deliver to Bondowner Representative dual obligee performance and labor and material payment bonds in form, substance and amount acceptable to Bondowner Representative. If requested by Bondowner Representative, Borrower shall record such bonds and file the Plans and Specifications and the Construction Agreement in the Official Records of the County if such documents can be legally recorded in the Official Records of the County. 5.15 PROJECT, TITLE, OPERATION AND MAINTENANCE. (a) The Issuer shall not be under any obligation to operate, maintain or repair the Property. Borrower agrees that it will, at its own expense, (a) keep the Property in safe repair and in such operating condition as is needed for its operations; (b) make all necessary repairs and replacements to the Property (whether ordinary or extraordinary, structural or nonstructural); (c) subject to the restrictions imposed by the Regulatory Agreement, operate the Project in a sound and economic manner in accordance with usual business practice; (d) operate the Project in compliance with all applicable laws, codes, environmental laws, zoning laws, the ADA (to the extent applicable) and laws regulating const ruction, occupancy or maintenance of property of a character included in the Project; and (e) comply with all existing and future laws, regulations, orders, building codes and restrictions and requirements of, and all permits and approvals from, and agreements with and commitments to, all governmental, judicial or legal authorities having jurisdiction over the Property or Borrower’s business, conducted thereon or therefrom and with all restrictive covenants and other title encumbrances encumbering the Prope rty, including without limitation those contained in the Regulatory Agreement (all collectively, the “Requirements”). (b) Borrower shall pay all expenses of the operation and maintenance of the Project including, but without limitation, adequate insurance thereon and insurance against all liability for injury to persons or property arising from the operation thereof, and all taxes and special assessments levied upon or with respect to the Project and payable during the term of this Loan Agreement, all in confor mance with and subject to any good faith contest provisions provided in the Deed of Trust. (c) In the event Borrower shall fail to maintain, or cause to be maintained, the full insurance coverage required by this Loan Agreement or shall fail to keep the Projec t in good repair and good operating condition and make all necessary repairs and replacements to the Project, the Bondowner Representative may, after providing Borrower with reasonable notice and the opportunity to remedy the problem(s) identified by Bondo wner Representative, but shall be under no obligation to, contract for the -37- DWT 30207606v4 0088288-000026 required policies of insurance and pay the premiums on the same or make any required repairs, renewals and replacements; and Borrower agrees to reimburse the Issuer or the Bondowner Representative to the extent of the amounts so advanced, and in addition shall pay interest on any such amount at the Default Rate from the date such amount was advanced until the date such amount was repaid or reimbursed by Borrower. (d) Borrower shall obtain or cause to be obtained all necessary permits and approvals for the operation and maintenance of the Project and shall comply with all applicable lawful requirements of any governmental body regarding the use or condition of the Project, whether existi ng or later enacted or whether involving any change in governmental policy or requiring structural or other changes to part or all of the Project and irrespective of the cost of making the same. Borrower must deliver copies of all such permits and approvals to Bondowner Representative promptly and in any event within twenty (20) days after receipt thereof. (e) Notwithstanding the provisions of this Section 5.15, Borrower may in good faith contest the validity or the applicability of any law, ordinance, rule or regulation provided that during the period of such contest and any appeal therefrom, (i) such failure to comply with such requirement or requirements will not adversely affect the lien of the Deed of Trust or materially endanger such liens or the Project or any part thereof, (ii) will not subject the Project or any part thereof to loss or forfeiture and (iii) Borrower will post with the Bondowner Representative, for the benefit of the Bondholders, cash, a bond or other reasonably acceptable security in an amount equal to 125% of the disputed amount. (f) Borrower agrees not to permit or suffer others to commit a nuisance in or about the Property or themselves commit a nuisance in connection with their use or occupancy of the Property. 5.16 ADVANCES. Borrower acknowledges and agrees that under this Loan Agreement and certain of the other Loan Documents, the Bondholders or the Bondowner Representative may, but shall be under no obligation to, take certain action and make certain advances relating to the Project from c ertain funds held under the Indenture or otherwise, or to certain other matters as expressly provided therein, and Borrower shall be obligated to repay all such advances on demand with interest from the date such payment was originally advanced until repai d or reimbursed by Borrower at the Default Rate. 5.17 ALTERATIONS TO THE PROJECT AND REMOVAL OF EQUIPMENT. After completion of construction in accordance with the Plans and Specifications, subject to Section 5.5(a), Borrower shall not, without the reasonable consent of Bondowner Representative, remodel or make any additions, modifications, alterations, or changes to the Project (collectively referred to as “alterations”) in or to the Project or remove any equipment therefrom other than in the ordinary course o f business in the operation of the Project. Notwithstanding the provisions of the Deed of Trust, no such alteration or removal will be made if to do so would impair the character of the Project as a “project” within the meaning of the Act, or impair the e xclusion of interest on the Bonds from gross income for federal income tax purposes. 5.18 CONSTRUCTION SCHEDULE. If, based on any construction progress schedule or other materials submitted by Borrower, Bondowner Representative in its reasonable judgment dete rmines that the Project will not be completed by the Completion Date, Bondowner Representative may request Borrower in writing to reschedule the work of construction to permit timely completion. In addition, if Bondowner Representative in its reasonable judgment determines that any building constituting the Project will not be “placed in service” (within the meaning of Section 42 of the Code) by the Completion Date, Bondowner Representative may request Borrower in writing to reschedule the work of construction. Within fifteen (15) days after receiving such a request from Bondowner Representative, Borrower must deliver to Bondowner Representative a revised construction progress schedule showing completion of the Project by the Completion Date. As a conditio n to any agreement to extend the Completion Date, Bondowner Representative may require Borrower to confirm by evidence satisfactory to Bondowner Representative that such extension will not have any adverse effect upon the availability of the LIHTC for the Project. -38- DWT 30207606v4 0088288-000026 5.19 PRESERVATION OF RIGHTS. Borrower must obtain, preserve and maintain in good standing, as applicable, all rights, privileges and franchises necessary or desirable for the operation of the Property and the conduct of Borrower’s business thereon or therefrom. 5.20 MAINTENANCE AND REPAIR. Borrower must (i) maintain the Property, including the parking and landscaping portions thereof, in good condition and repair, reasonable wear and tear excepted, (ii) promptly make all necessary structural and non-structural repairs to the Project (or cause tenants under any leases to perform such obligation), and (iii) not erect any new buildings, structures or building additions on the Property, without the prior written consent of Bondowner Representative. Borrower must pay when due all claims for labor performed and materials furnished therefor in connection with any improvement, construction or construction activities. 5.21 PERFORMANCE OF ACTS. Borrower must perform, upon Bondowner Representative’s request, all acts necessary to perfect any lien or security interest provided for in the Loan Documents. 5.22 MANAGEMENT AGREEMENT. Bondowner Representative must review and approve any agreement providing for the management or operation of the Property, including any material m odifications or amendments thereto before Borrower can enter into such agreement, provided, however, the approval of Bondowner Representative shall not be required for the renewal of any such agreement. 5.23 TAX RECEIPTS. From and after the Conversion Date, at Borrower’s sole expense, Bondowner Representative shall procure a tax services contract issued by a tax reporting service satisfactory to Bondowner Representative with respect to the Project. ARTICLE 6. CONVERSION 6.1 CONVERSION CONDITIONS. The Loan will convert (“Conversion”) to a term loan subject to the satisfaction of each of the conditions precedent set forth in the Bond Purchase Agreement (the “Conversion Conditions”), or waiver thereof , and upon the purchase of the Bonds by CCRC. ARTICLE 7. INSURANCE Borrower shall, while any obligation of Borrower or any Guarantor under any Loan Document remains outstanding, maintain at Borrower’s sole expense, with licensed insurers approved by Bondowner Representative, the following policies of insurance in form and substance satisfact ory to Bondowner Representative. Capitalized terms used in this Article shall have the same meaning as such terms are commonly and presently defined in the insurance industry. 7.1 TITLE INSURANCE. A Title Policy, consistent with the requirements of Section 4.1(d) and 4.3(f) of this Loan Agreement prior to Conversion and the Bond Purchase Agreement after Conversion, insuring Bondowner Representative, in the principal amount of the Loan, of the validity and the priority of the lien of the Deed of Trust upon the Property, subject only to matters approved by Bondowner Representative in writing. During the term of the Loan, Borrower shall cause to be delivered to Bondowner Representative, within five (5) days of Bondowner Representative’s written request, such other endorsements to the Title Policy as Bondowner Representative may require, including without limitation, a lien -free endorsement in form and content satisfactory to Bondowner Representative upon completion of the construction of the Improvements. Upon the request of Bondowner Representative, or it successors or assigns, Borrower shall provide a valid recorded Notice of Completion evidencing that the Improvements are 100% complete, Bondowner Representative shall have received a lien free endorsement in form and content satisfactory to Bondowner Representative to be attached to the Title Policy, and an LP-10 Rewrite to the Title Policy in form and content satisfactory to Bondowner Representative, or its successors or assigns. 7.2 PROPERTY INSURANCE. -39- DWT 30207606v4 0088288-000026 (a) Prior to the Conversion Date, a Builders All Risk/ Special Form Completed Value (Non - Reporting Form) Hazard Insurance policy, including without limitation, theft coverage and such other coverages and endorsements as Bondowner Representative may require, insuring Bo ndowner Representative against damage to the Property and Improvements in an amount not less than 100% of the full replacement cost at the time of completion of the Improvements. Such coverage should adequately insure any and all Loan collateral, whether such collateral is onsite, stored offsite or otherwise. Bondowner Representative shall be named on the policy as Mortgagee and named under a Bondowner Representative’s Loss Payable Endorsement (Form #ISO CP 1218 or its equivalent). (b) At all times from and after the Conversion Date, Borrower shall provide, maintain and keep in full force and effect all insurance required in clauses (i) through (v) below, as well as such additional insurance as CCRC in its reasonable judgment may from time to time require, aga inst insurable hazards which at the time are commonly insured against in the case of properties situated similarly to that of the Property. Borrower shall supply CCRC with a certificate of insurance for any and all policies required hereunder. Insurance required hereunder is as follows: (i) Borrower must provide insurance, with a replacement cost provision in the policy of insurance or as an endorsement attached thereto, insuring against loss or damage to the Real Property and Improvements as follows: (1) insurance against loss or damage from fire and/or lightning; (2) insurance against loss or damage from other risks embraced by the type of coverage known as “Special Form” (formerly referred to as “All Risk”) Fire and Extended Coverage insurance, including riot and c ivil commotion, vandalism and malicious mischief, in an amount not less than the Loan amount; (3) insurance against loss or damage from any boilers, electrical wiring and/or heating, air conditioning and/or refrigeration equipment, or other similar equipment and machinery, at full replacement cost; (4) such other insurance, endorsements and/or renewals, including extended coverage, as CCRC may require, insuring against such perils, risks or hazards as CCRC may designate, including (x) flood insurance, if the Property is located in a flood zone pursuant to those certain NFIP maps issued by the Federal Emergency Management Agency, covering the Property, and, (y) earthquake insurance in such amounts, and on such terms and conditions, as CCRC may require, but only in the event that either (1) the Office of the Comptroller of the Currency or the Federal Deposit Insurance Corporation requires regulated financial institutions or entities such as CCRC to require borrowers or customers to insure against earthquakes, or (2) either Fannie Mae or the Federal Home Loan Mortgage Corporation requires that collateral for loans in its respective programs be insured against earthquakes, or (3) the Property is or becomes located in an “Alquist -Priolo” zone as determined by reference to applicable California law; (ii) Borrower must provide worker's compensation insurance as may be required by applicable worker's compensation insurance laws (including employer's liability insurance, if required by CCRC), covering all employees of Borrower; (iii) Borrower must provide rental income or rental value insurance with respect to the Improvements, with a liability of not less than eighteen (18) months’ project rents therefrom, naming CCRC as a lender loss payee; -40- DWT 30207606v4 0088288-000026 (iv) Borrower must provide ordinance and law coverage for properties that contain any type of non-conformance under current building, zoning, or land use laws or ordinances; and (v) Borrower must provide professional liability insurance for properties which provide any form of on-site services, where service provider requires a professional license or an advanced professional degree, and shall maintain professional liability insurance protecting the property against errors and omissions of such service provider. Borrower shall also require such service providers to carry the same professional liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence. 7.3 FLOOD HAZARD INSURANCE. A policy of flood insurance, if required by applicable governmental regulations, or as deemed necessary by Bondowner Representative, in an amount required by Bondowner Representative, but in no event less than the amount sufficient to meet the requirements of applicable law and governmental regulation. 7.4 LIABILITY INSURANCE. A policy of Commercial General Liability insurance on an occurrence basis, with coverages and limits as required by Bondowner Representative, insuring against liability for injury and/or death to any person and/or damage to any property occurring on the Property and/or in the Improvements. During the period of any construction, Borrower may cause its contractors and/or subcontractors to maintain in full force and effect any or all of the liability insurance required hereunder. Bondowner Representative may require that Bondowner Representative be named as an additional insured on any such policy. Whether Borrower employs a general contractor or performs as owner -builder, Bondowner Representative may require that coverage include statutory workers’ compensation insurance. Upon Conversion, Borrower must provide comprehensive liability insurance naming Bondowner Representative as additional insured parties, on an “occurrence” basis against claims for “personal injury” liability, including bodily injury, death or property damage liability, with a limit of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000) in the annual aggregate (or, if the Property contains one or more elevators, at least Three Million Dollars ($3,000,000.00) per occurrence and Four Million Dollars ($4,000,000) in the annual aggregate). 7.5 OTHER COVERAGE. Borrower shall provide to Bondowner Representative evidence of such other reasonable insurance in such reasonable amounts as Bondowner Representative may from time to tim e request against such other insurable hazards which at the time are commonly insured against for property similar to the subject Property located in or around the region in which the subject Property is located. Such coverage requirements may include but are not limited to coverage for earthquake, acts of terrorism, business income, rental loss, sink hole, soft costs, tenant improvement or environmental. 7.6 OTHER INSURANCE. If Bondowner Representative so requests, Borrower must provide such certified copy of worker’s compensation insurance as may be required by applicable worker’s compensation insurance laws (including employer’s liability insurance, if required by Bondowner Representative), covering all employees of Borrower. Borrower must provide such additional insurance upon Conversion as may be required pursuant to the terms of the Bond Purchase Agreement. 7.7 GENERAL. (a) Borrower shall provide to Bondowner Representative the originals of all required insurance policies, or other evidence of insurance acceptable to Bondowner Representative. All insurance policies shall provide that the insurance shall not be cancelable or materially changed without ten (10) days prior written notice to Bondowner Representative and Issuer of any cancellation for nonpayment of premiums and not less than 30 days prior written notice to Bondowner Representative and Issuer of any other cancellation or any modification (including a reduction in coverage). Bondowner Representative and Issuer shall be named under a Bondowner Representative’s Loss Payable Endorsement (Form #ISO CP 1218 or its equivalent) on all insurance policies which Borrower actually maintains with respect to the Property and Improvements. All insurance policies shall be issued and maintained by insurers approved t o do business in the state in which the Property is located and must have an A.M. Best Company financial -41- DWT 30207606v4 0088288-000026 rating and policyholder surplus acceptable to Bondowner Representative. All proceeds of insurance policies shall be controlled by Bondowner Representative and disbursed by Bondowner Representative pursuant to and in accordance with Section 5.6 of the Deed of Trust. Borrower shall provide to Bondowner Representative evidence of any other hazard insurance Bondowner Representative may deem necessary at any time during the Loan. (b) All policies of insurance required under the Loan Documents upon Conversion must be issued to Borrower as the primary insured party by companies approved by CCRC having Bes t’s ratings of not less than A:X, and be approved by CCRC as to amounts, forms, risk coverages, deductibles, expiration dates, and loss payable and cancellation provisions. The maximum allowable deductible is $5,000.00. In addition, each required policy must contain such endorsements as CCRC may require, as well as a Lenders Loss Payable Endorsement ISO CP 1218 or its equivalent in favor of CCRC at 225 West Broadway, Suite 120, Glendale, California 91204, and must provide that all proceeds be payable to CCRC to the extent of its interest. An approval by CCRC is not, and shall not be deemed to be, a representation of the solvency of any insurer or the sufficiency of any amount of insurance. Co -insurance shall not be allowed in connection with the policies of insurance required hereunder. At all times, Borrower shal l provide, maintain and keep in force all insurance required in Sections 7.1 through 7.6 above. In the event that either (1) the Office of the Comptroller of the Currency or the Federal Deposit Insurance Corporation requires regulated financial institutions or entities such as Bondowner Representative to require the Borrower to insure against earthquakes, or (2) either Fannie Mae or the Federal Home Loan Mortgage Corporation requires that collateral for loans in its respective affordable housing program be insured against earthquakes, or (3) the Land or the Improvements are or become located in an “Alquist -Priolo” zone as determined by reference to applicable California law, then, only in such event, Bondowner Representative shall have the right to require the Borrower to obtain earthquake insurance; provided, however, that such insurance must also comply with the standard set forth in the preceding sentence. (c) Each policy of insurance required under the Loan Documents must provide that it may not be modified or canceled without at least thirty (30) days prior written notice to Bondowner Representative. The Certificate of Insurance for each policy of insurance required hereunder shall show Bondowner Representative as a recipient of any notice of cancellation as follows: (i) prior to Conversion, at Wells Fargo Bank, Community Lending and Investment, MAC #A0119-183, 333 Market Street, 18th Floor, San Francisco, California 94105, Attention: Loan Administration Officer, and (ii) after Conversion, at CCRC, 225 West Broadway, Suite 120, Glendale, California 91204, Attention: Insurance Administrator. At least ten (10) days before expiration of any required insurance policy, Borrower shall furnish Bondowner Representative and Issuer with proof acceptable to Bondowner Representative and Issuer that a new policy has been issued, continuing in force the insurance covered by the policy that is expiring. At the same time, Borrower shall also furnish Bondowner Representative and Issuer with evidence satisfactory to Bondowner Representative that all premiums for any such new policy have been paid. If at least ten (10) days before a required policy expires, Bondowner Representative and Issuer do not receive proof and evidence that a new policy has been issued and that the premiums for it have been paid, Bondowner Representative in its sole discretion may procure a new policy and advance funds to pay the premiums for it. Borrower shall repay Bondowner Representative immediately on demand for any advance for such premiums, which shall be considered to be an additional loan to the Borrower bearing interest at the rate of interest provided for in the Note, and secured by the Loan Documents. (d) At the time of Conversion, Borrower must provide temporary evidence of property insurance in the form of signed originals of the most recent editions of the ACORD 28 or ACORD 75S Insurance Binder, liability insurance in form of signed originals of the most recent edition of the ACORD 25S certificate of liability insurance form, and permanent ev idence within thirty (30) days of Conversion in the form of a complete duplicate original copy of each required insurance policy, including all endorsements, conditions, exclusions and limitations. (e) Upon an Event of Default, whether or not the same has thereafter been cured or waived by Bondowner Representative, but for the lapse of any applicable grace period, Borrower shall, at the request of Bondowner Representative, deposit with Bondowner Representative, in monthly installments in advance on the first day of each month, an amount sufficient, as reasonably estimated by Bondowner -42- DWT 30207606v4 0088288-000026 Representative, to pay all insurance premiums next due on all policies of insurance required by this Loan Agreement or the other Loan Documents. In such event, Borrower further agrees, upon Bondowner Representative’s request, to cause all bills, statements or other documents relating to the foregoing insurance premiums to be sent or mailed directly to Bondowner Representative. Upon receipt of such bills, statements or other documents, and provided Borrower has deposited sufficient funds with Bondowner Representative pursuant to this Section 7.7, Bondowner Representative shall pay such premiums as may be due thereunder out of the funds so deposited with Bondowner Representative. If at any time and for any reason the funds deposited with Bondowner Representative are or will be insufficient to pay such premiums as may then or subsequently be due, Bondowner Representative may notify Borrower and Borrower shall immediately deposit an amount equal to the deficiency with Bondowner Representative. If at any time the funds deposited with Bondowner Representative exceed the amount deemed necessary by Bondowner Representative to pay such premiums as may then or subsequently be due, such excess shall be credited to Borrower on the next monthly installment or installments of such funds. Upon payment and performance in full of the Loan all indebtedness and obligations under the Loan Documents, Bondowner Representative shall promptly refund to Borrower any such funds held by Bondowner Representative. Nothing herein shall cause Bondowner Representative to be deemed a trustee of such funds or to be obligated to pay any amounts in excess of the amount of funds deposited with Bondowner Representative pursuant to this Section 7.7. Bondowner Representative may commingle such deposits with its own funds and Borrower shall not be entitled to any interest thereon. ARTICLE 8. REPRESENTATIONS AND WARRANTIES 8.1 REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer makes the following representations and warranties to the Bondowner Representative: (a) The Issuer is a political subdivision and body corporate and politic, duly organized and validly existing under the laws of the State, and is duly authorized to issue the Bonds and to perform its obligations under this Loan Agreement. (b) All requirements have been met and procedures have occurred in order to authorize the execution and delivery by Issuer of this Loan Agreement. The Issuer has taken all necessary action and has complied with all provisions of the law required to make this Loan Agreement a valid and binding limited obligation of the Issuer, except to the extent limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity, or by public policy. (c) The Bonds have been duly authorized, executed and delivered by the Issuer. Nothing in this Loan Agreement shall be construed as requiring the Issuer to provide any financing for the Project other than the proceeds of the Bonds or to provide sufficient moneys for all of the cost of financing the Project. (d) To the best knowledge of the Issuer, there is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency or public board or body pending or threatened against the Issuer which (i) affects or seeks to prohibit, restrain or enjoin the issuance, execution or delivery of the Bonds, the origination of the Loan or the lending of the proceeds of the Bonds to the Borrower, or the execution and delivery by the Issuer of the Bond Documents, (ii) affects or questions the validity or enforceability of the Bonds or the Bond Documents or (iii) questions the tax-exempt status of interest on the Bonds. 8.2 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. As a material inducement to Bondowner Representative’s entry into this Loan Agreement and Issuer’s issuance of the Bonds, Borrower represents and warrants to Bondowner Representative and Issuer as of the Effective Date and continuing thereafter that: (a) Organization Of Borrower And General Partner. Borrower is and shall at all times hereafter be a limited partnership duly organized and validly existi ng under the laws of the State of -43- DWT 30207606v4 0088288-000026 California and is and at all times hereafter shall be qualified and licensed to do business and is in good standing in any state in which it conducts its business or in which the failure to qualify could have a material adverse effect on the condition, financial or otherwise, business, Property or results of operations of Borrower. General Partner is and shall at all times be a corporation or limited liability company, duly organized and validly existing under the laws of the state of its formation, and is and at all times shall be qualified and licensed to do business, and is in good standing, in any state in which it conducts its business or in which the failure to qualify could have a material adverse effect on the condi tion, financial or otherwise, of its business or the Property. (b) Issuer/Enforceability. Borrower is in compliance with all laws and regulations applicable to its organization, existence and transaction of business and has all necessary rights and powers to own, develop and operate the Property and Improvements as contemplated by the Loan Documents. (c) Requisite Power. Borrower has all requisite partnership power to borrow the sums provided for under the Loan and under this Loan Agreement, and has all requisite power to execute, deliver, issue and perform this Loan Agreement and all other Loan Documents to which it is a party and to consummate the transactions hereunder and thereunder. General Partner has all requisite power to act on its own behalf and as Borrower’s general partner in connection with its and Borrower’s execution, delivery and performance of this Loan Agreement, the other Loan Documents and any and all other documents executed in connection herewith or therewith to which it or Borrower is a part y, and the consummation of the transactions hereunder or thereunder. (d) Formation And Organizational Documents. Borrower has delivered to Bondowner Representative all formation and organizational documents of Borrower, of the general partners, joint venturers or members of Borrower, if any, and Guarantor of the Loan, if any, and all such formation and organizational documents remain in full force and effect and have not been amended or modified since they were delivered to Bondowner Representative. Borrower shall immediately provide Bondowner Representative with copies of any amendments or modifications of the formation or organizational documents. (e) Authorization. All partnership actions on the part of Borrower or all corporate, limited liability company and/or partnership actions on behalf of General Partner necessary for the authorization, execution, delivery and performance of this Loan Agreement, the other Loan Documents and any and all other documents executed in connection herewith or therewith, has been duly taken and is in full force and effect. All corporate or limited liability company actions on the part of General Partner, acting on its own behalf and as Borrower’s general partner necessary for the authorization, execution, delivery and performance of this Loan Agreement, the other Loan Documents or any other document executed in connection herewith or therewith to which it or Borrower is a party has been duly taken and is in full force and effect. In addition, each authorized officer or partner executing this Loan Agreement, the other Loan Documents or any other document executed in connection herewith or therewith, is (as of the date of such execution) duly and properly in office and fully authorized to execute and deliver the same on behalf of th e General Partner, acting on its own behalf and as Borrower’s general partner. (f) Binding Obligations. This Loan Agreement, the other Loan Documents and any and all other documents executed in connection herewith or therewith to which either Borrower or Gene ral Partner is a party have been duly executed and delivered and are the legal, valid and binding obligations of Borrower and such General Partner (as the case may be), enforceable in accordance with their respective terms; except in each case as enforcement may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public pol icy. (g) No Violation. Borrower’s and General Partner’s execution, delivery, and performance under the Loan Documents do not: (a) require any consent or approval not heretofore obtained under any partnership agreement, operating agreement, articles of incorporation, bylaws or other document; (b) violate any governmental requirement applicable to the Property and Improvements or any other statute, law, regulation or ordinance or any order or ruling of any court or governmental entity; (c) conflict with, or -44- DWT 30207606v4 0088288-000026 constitute a breach or default of, or permit the acceleration of obligations under any agreement, contract, lease, or other document by which Borrower or General Partner is or the Property and Improvements are bound or regulated; or (d) violate any statute, law, regulation or ordinance, or any order of any court or governmental entity. (h) No Conflict. The execution and delivery of the Loan Documents, the consummation of the transactions therein contemplated and the fulfillment of or compliance with the terms and c onditions thereof, will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under the partnership agreement of the Borrower or to the best knowledge of the Borrower and with respect to the Borrower, any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any mortgage, deed of trust, loan agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Borrower, which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Loan Documents, or the financial condition, assets, properties or operations of the Borrower. (i) No Consent. No consent or approval of any trustee or holder of any indebtedness of the Borrower, and to the best knowledge of the Borrower and with respect to the Borrower, no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery of the Loan Documents, or the consummation of any transaction therein contemplated, or the fulfillment of or compliance with the terms and conditions thereof, except as have been obtained or made and as are in full force and effect. (j) Compliance With Laws. Borrower has and at all times shall have obtained all permits, licenses, exemptions, and approvals necessary to construct, occupy, operate and market the Property and Improvements, and shall maintain compliance with all governmental requirements applicable to the Property and Improvements and all other applicable statutes, laws, regulations and ordinances n ecessary for the transaction of its business, including without limitation all laws and regulations with respect to the creation, continued effectiveness and availability of LIHTCs. The Property is a legal parcel lawfully created in full compliance with all subdivision laws and ordinances and is properly zoned for the stated use of the Property, as disclosed to Bondowner Representative as of the Closing Date . Borrower and General Partner are in compliance in all material respects with all applicable laws, rules, regulations and ordinances. Borrower shall not initiate or acquiesce to a zoning change of the Property without Bondowner Representative’s prior written consent. (k) Litigation. There is no action, suit, proceeding, inquiry or investigation, before or by any court or federal, state, municipal or other governmental authority, pending, or to the knowledge of the Borrower, threatened, against or affecting the Borrower or General Partner or the assets, properties or operations of the Borrower which, if determined adversely to the Borrower or its interests, would have a material adverse effect upon the consummation of the transactions contemplated by, or the validity of the Loan Documents or upon the financial condition, assets, properties or operations of the Borrower or General Partner and the Borrower or General Partner is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Lo an Documents, or the financial condition, assets, properties or operations of the Borrower. All tax returns (federal, state and local) required to be filed by or on behalf of the Borrower or General Partner have been filed, and all taxes shown thereon to be due, including interest and penalties, except such, if any, as are being actively contested by the Borrower or General Partner in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein. The Borrower or General Partner enjoys the peaceful and undisturbed possession of all of the premises upon which it is operating its facilities. -45- DWT 30207606v4 0088288-000026 (l) Financial Condition. All financial statements and information heretofore and hereafter delivered to Bondowner Representative by Borrower, including, without limitation, information relating to the financial condition of Borrower, the Property, the Improvements, the partners, joint venturers or members of Borrower, and/or any Guarantor, fairly and accurately represent the financial condition of the subject thereof as of the date hereof and have been prepared (except as noted therein) in accordance with generally accepted accounting principles consistently app lied. Notwithstanding the use of generally accepted accounting principles, the calculation of liabilities shall NOT include any fair value adjustments to the carrying value of liabilities to record such liabilities at fair value pursuant to electing the f air value option election under FASB ASC 825-10-25 (formerly known as FAS 159, The Fair Value Option for Financial Assets and Financial Liabilities) or other FASB standards allowing entities to elect fair value option for financial liabilities. Therefore, the amount of liabilities shall be the historical cost basis, which generally is the contractual amount owed adjusted for amortization or accretion of any premium or discount. Borrower acknowledges and agrees that Bondowner Representative may request and obtain additional information from third parties regarding any of the above, including, without limitation, credit reports. (m) No Material Misrepresentation. No written information, exhibit or report furnished to the Issuer by the Borrower in connection with the negotiation of the Loan Documents contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made , not misleading. (n) No Material Adverse Change. There has been no material adverse change in the financial condition of Borrower and/or, prior to Conversion, any Guarantor, since the dates of the latest financial statements furnished to Bondowner Representative and, except as otherwise disclosed to Bondowner Representative in writing, Borrower has not entered into any material transaction which is not disclosed in such financial statements. (o) Loan Proceeds and Adequacy. The undisbursed Loan proceeds, together with Borrower’s Funds, the proceeds of the Subordinate Loan(s), the Capital Contributions, and all other sums, if any, to be provided by Borrower as shown in Exhibit C, are sufficient to acquire Borrower’s interest in the Property and construct the Improvements in accordance with the terms and conditions of this Loan Agreement. (p) Accuracy. All reports, documents, instruments, information and forms of evidence delivered to Bondowner Representative by Borrower concerning the Loan or security for the Loan or required by the Loan Documents are accurate, correct and sufficiently complete to give Bondowner Representative true and accurate knowledge of their subject matter, and do not contain any misrepresentation or omission. (q) Tax Liability. Borrower and General Partner have filed all required federal, state, county and municipal tax returns and have paid all taxes and assessments owed and payable, and Borrower has no knowledge of any basis for any additional payment with respect to any such taxes and assessments. (r) Utilities. All utility services, including, without limitation, gas, water, sewage, electrical and telephone, necessary for the construction and occupancy of the Property and Improvements are available at or within the boundaries of the Property, or Borro wer has taken all steps necessary to assure that all such services will be available upon completion of the Improvements. Borrower shall pay when due all utility assessments and charges for gas, electricity, fuel, water, steam, sewer, drainage, refuse disposal, telephone and other services furnished to or for the benefit of the Property and all other assessments or charges of a similar nature, whether public or private, affecting the Property or any portion thereof, whether or not such assessments or charges are liens on the Property. (s) Compliance. Borrower is familiar with and in compliance with all governmental requirements for the development of the Property and the construction of the Improvements and will conform to and comply with all governmental requirements and the Plans and Specifications. -46- DWT 30207606v4 0088288-000026 (t) Americans With Disabilities Act Compliance. The construction of the Improvements shall be performed and completed, and thereafter maintained, in strict accordance and full compliance with any applicable requirements of the Americans with Disabilities Act, of July 26, 1990, Pub. L. No. 101 336, 104 Stat. 327, 42 U.S.C. § 12101, et seq., as amended from time to time. Borrower shall be responsible for all ADA compliance costs. (u) Tax Credits. Borrower has received a Tax-Exempt Reservation Letter dated July 20, 2016 (“Reservation Letter”), and Borrower is entitled to a LIHTC allocation for the Improvements from TCAC. The LIHTC allocation as set forth in said Reservation Letter is for Federal LIHTCs in the minimum amount of One Million Eighty Thousand Five Hundred Forty-Eight and No/100th Dollars ($1,080,548) annually for each of ten (10) years. Borrower shall completely and in a timely manner perform all actions and meet all requirements to maintain and perfect the rese rvations and LIHTC allocation, including, without limitation, timely furnishing to the TCAC of all of the items required to be furnished to it no later than such date as required by TCAC in order to prevent the expiration of the reservation and allocation. If Bondowner Representative determines, in its sole and absolute discretion, that Borrower will not meet the TCAC requirements as set forth in the Preliminary Reservation Letter, Borrower hereby agrees to reapply for the next available allocation of LIHTCs within all timelines and requirements as established by TCAC. Failure to do so is a Default pursuant to Section 13.1 herein. Borrower shall submit to Bondowner Representative, immediately upon receipt, until the Loan has been paid in full, a copy of all written communication to or from TCAC or any other governmental authority relating to the Improvements or the LIHTC. Bondowner Representative shall have received copies of any Annual Owner Certification or Final Cost Certification prepared by Borrower for TCAC (and, if an audit thereof uncovers deficiencies, any evidence provided to TCAC of the cure of such deficiencies), any other reporting Borrower provides to TCAC in connection with compliance with the Requirements and Internal Revenue Forms 8586 and 8609, to the extent already issued. (v) Business Loan. The Loan is a business loan transaction in the stated amount solely for the purpose of carrying on the business of Borrower and none of the proceeds of the Loan will be used for the personal, family or agricultural purposes of the Borrower. (w) Capital Contribution. The Investor Limited Partner will be required to make Capital Contributions to the Borrower in exchange for Investor Limited Partner’s limited partnership interest in the Borrower and that, subject to and in accordance with the terms and conditions of the Partnership Agreement, Investor Limited Partner will make an initial capital contribution in the amount of $___________ (the “Initial Capital Contribution”) and total Capital Contributions in the amounts set forth in Section 1.1. (x) Tax Shelter Regulations. Neither Borrower, any Guarantor, nor any subsidiary of any of the foregoing intends to treat the Loan or the transactions contemplated by this Loan Agreement and the other Loan Documents as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4). If Borrower or any other party to the Loan determines to take any action inconsistent with such intention, Borrower will promptly notify Bondowner Representative thereof. If Borrower so notifies Bondowner Representative, Borrower acknowledges that Bondowner Representative may treat the Loan as part of a transaction that is subject to Treasury Regulation Section 301.6112-1, and Bondowner Representative will maintain the lists and other records, including the identity of the applicable party to the Loan as required by such Treasury Regulation. (y) Borrower Not A “Foreign Person”. Borrower is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended from time to time. (z) Full Disclosure. This Loan Agreement and the financial information delivered in connection herewith and therewith, and the representations and warranties of Borrower or any member or General Partner herein and in any other document delivered or to be delivered by or on behalf of Borrower or any member or General Partner, do not and will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein, in light of the circumstances under which they were made, not misleading. To the best knowledge of Borrower, after -47- DWT 30207606v4 0088288-000026 diligent inquiry and investigation, there is no material fact which Borrower has not disclosed to Bondowner Representative in writing which materially and adversely affect the assets, business, prospects, profits or condition (financial or otherwise) of Borrower, the rights of Bondowner Representative, the ability of Borrower to perform this Loan Agreement and the Loan Documen ts. (aa) Sanctions, Anti-Corruption and Anti-Money Laundering Laws. No Person within the Borrowing Group is: (a) a Sanctioned Person; (b) controlled by or acting on behalf of a Sanctioned Person; (c) under investigation for an alleged breach of Sanction(s) by a governmental authority that enforces Sanctions. Each Person within the Borrowing Group: (a) is in compliance with all Anti -Corruption Laws and Anti-Money Laundering Laws; (b) is not, and has not been, under administrative, civil or criminal investigation; and (c) has not received notice from or made a voluntary disclosure to any governmental entity regarding a possible violation of any Anti -Corruption Laws or Anti-Money Laundering Laws. The provisions in this Section shall prevail and control over any contrary provisions in this Agreement or in any related documents. (bb) Bond-Related Representations. (i) Other than the Bonds, no other obligations have been or are expected to be issued under Section 103 of the Code for sale at substantially the same time as the Bonds are sold pursuant to a common plan of marketing and at substantially the same rate of interest as the Bonds and which are payable in whole or part by Borrower or otherwise have with the Bonds any common or pooled security for the payment of debt service thereon, or which are otherwise treated as the same “issue of obligations” as the Bonds as described in Revenue Ruling No. 81-216. (ii) Borrower is not in the trade or business of selling properties such as the Project and has not acquired the Project for investment purposes only or otherwise for use by Borrower in its trade or business. Therefore Borrower has no present intention to voluntarily sell, surrender or otherwise transfer, in whole or part, its interest in the Project in the foreseeable future, other than in connection with the purchase option granted to General Partner in the Partnership Agreement. (iii) Borrower has reviewed and approved the provisions of the Indenture. (iv) To the best of Borrower’s knowledge, no member of the governing body of the Issuer or any other officer of the Issuer has any significant or conflicting interest, financial, employment or otherwise, in Borrower, the Project or the transactions contemplated hereby. (v) The covenants, representations and warranties of Borrower in the Regulator y Agreement are true and correct as of the date hereof and are incorporated herein by reference and made a part of this Loan Agreement. (vi) Borrower has not entered into the transaction evidenced hereby with the actual intent to hinder, delay or defraud any creditor and Borrower has received reasonably equivalent value in exchange for its obligations hereunder and under the Deed of Trust and the Regulatory Agreement. (vii) Borrower has no known material contingent liabilities. (viii) Borrower has no material financial obligation under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower is a party or by which Borrower or the Project are otherwise bound, other than (a) obligations under this Loan Agreement and the other Loan Documents to which Borrower is a party; (b) obligations under those documents -48- DWT 30207606v4 0088288-000026 executed in connection with the Subordinate Loan(s); and (c) obligations which may be incurred by Borrower from time to time in the ordinary course of business. (ix) Borrower has not borrowed or received other debt financing that has not been heretofore repaid in full, except for the Subordinate Loans. (x) Borrower is not (a) an “investment company” or a company “controlled by an investment company” within the meaning of the Investment Company Act of 1940, as amended; (b) a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of either a “holding company” or a “subsidiary company” within the meaning of the Public Utility Holding Company Act of 1935, as amended; or (c) subject to any other federal or state law or regulation which purports to restrict its ability to borrow money other than Article 15 of the California State Constitution. (xi) Except as disclosed in the Title Policy, there are no pending or, to the knowledge of Borrower, proposed special or other assessments for public improvements affecting the Project, nor, to the knowledge of Borrower, are there any contemplated improvements to the Property that may result in such special or other assessments. (xii) No statement of fact made by Borrower herein or in the Loan Documents to which Borrower is a party contains any untrue statement of a material fact or omits to state any material fact necessary to make statements made by Borrower herein or therein not materially misleading. There is no fact presently known to Borrower which has not been disclosed which materially adversely affects or, to the best of Borrower’s knowledge, would materially adversely affect the business, operations or conditions (financial or otherwise) of Borrower. (xiii) All reports, documents, instruments, information and forms of evidence delivered to Bondowner Representative or Issuer by Borrower concerning the Loan or required by the Loan Documents are (or, in the case of materials prepared by persons other than Borrower or its members or general partner, are to the best of Borrower’s knowledge) accurate, correct and sufficiently complete to give Bondowner Representative or Issuer, as applicable, true and accurate knowledge of their subject matter. (xiv) Borrower owns directly, and not through any affiliated entity, all of the personal property and fixtures necessary for the operation of the Property for the uses presently being conducted thereon. (xv) Before any Guarantor became obligated in connection with the Loan, Borrower made full disclosure to such Guarantor regarding Borrower’s financial condition and business operations, the present and former condition, uses and ownership of the Property and all other circumstances bearing upon Borrower’s ability to pay and perform its obligations under the Loan Documents. (xvi) The Borrower acknowledges, represents and warrants that it understands the nature and structure of the transactions relating to the financing of the Project; that it is familiar with the provisions of all of the documents and instruments relating to such financing to which the Borrower is a party or of which it is a beneficiary, including the Indenture; that it understands the risks inherent in such transactions; and that it has not relied on the Issuer for any guidance or expertise in analyzing the financial or other consequences of the transactions -49- DWT 30207606v4 0088288-000026 contemplated by the Bond Documents and the Indenture or otherwise relied on the Issuer for any advice. (cc) Representations and Warranties of the Borrower Related to Certain Tax Matters. Borrower further represents and warrants that: (i) as of the Effective Date, the Borrower is in compliance with all requirements of the Tax Certificate, and the representations set forth in the Tax Certificate pertaining to the Borrower and the Project are true and accurate; (ii) the Bonds are not “federally guaranteed” as defined in Section 149(b) of the Code; (iii) in accordance with Section 147(b) of the Code, the weighted average maturity of the Bonds does not exceed one hundred twenty percent (120%) of the weighted average reasonably expected economic life of the facilities (comprising the Project) financed with the proceeds of the Bonds, determined as of the later of the date the Bonds are issued or the date the facilities are expected to be placed in service; (iv) after the Conversion Date, neither the Borrower nor, to the best knowledge of the Borrower, any “related person” to the Borrower (within the meaning of Section 147(a)(2) of the Code), will purchase Bonds pursuant to any arrangement, formal or informal; (v) the information furnished by the Borrower and used by the Issuer in preparing the certificate pursuant to Section 148 of the Code and information statement pursuant to Section 149(e) of the Code is accurate and complete as of the date of the issuance of the Bonds; (vi) the construction of the Project was not commenced prior to the sixtieth (60th) day preceding the adoption of Resolution No. 2016/89 of the Issuer with respect to the Project on March 1, 2016, and no obligation for which reimbursement will be sought from proceeds of the Bonds relating to the construction or equipping of the Project was paid or incurred prior to sixty (60) days prior to such date; (vii) the Project is, as of the Closing Date, in compliance with all requirements of the Regulatory Agreement to the extent such requirements are applicable on the Closing Date and the representations and warranties of the Borrower in Sections 2 and 3 of the Regulatory Agreement are true and correct; (viii) the Borrower intends to cause the residential units in the Project to be rented or available for rental on a basis which satisfies the requirements of the Regulatory Agreement, including all applicable requirements of the Act and the Code, and pursuant to leases which comply with all applicable laws; and (ix) no money on deposit in any fund or account in connection with the Bonds, whether or not such money was derived from other sources, will be used by or under the direction of the Borrower in a manner which would cause the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code. 8.3 TAX EXEMPTION; REGULATORY AGREEMENT. Borrower (and with respect to Section 8.3(b) and (c), the Issuer) hereby covenants, represents and agrees as follows: -50- DWT 30207606v4 0088288-000026 (a) not to knowingly take or omit to take any action with respect to this Loan Agreement (with respect to the Issuer) and not to take or omit to take any action with respect to this Loan Agreement or the Project (solely with respect to Borrower) that would adversel y affect the exclusion from gross income for federal income tax purposes of the interest on the Bonds (except for any Bonds owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower); (b) to take such action or actions, including amendment of the Regulatory Agreement, to the extent deemed necessary in the opinion of Bond Counsel, to preserve or perfect the exclusion of interest on the Bonds from gross income for federal income tax purposes; (c) at the expense of Borrower, and as to Borrower only, to file of record such documents and take such other steps as are necessary in order to insure that the requirements and restrictions of the Regulatory Agreement will be binding upon all owners of the Project, and as to the Borrower and the Issuer, to execute and record the Regulatory Agreement in the real property records of Contra Costa County, California; (d) to notify any subsequent owner of the Project of the requirements and restrictions contained in the Regulatory Agreement in any documents transferring any interest in the Project to another person to the end that such transferee has notice of such restrictions, and to obtain the agreement from any transferee to abide by all requirements and restrictions of the Regulato ry Agreement; and (e) to provide to the Issuer notice of any action (other than actions in its ordinary course of business) which impacts the Issuer’s rights hereunder or under the Regulatory Agreement. 8.4 REPRESENTATIONS OF BORROWER AS SINGLE PURPOSE ENTITY. (a) Borrower covenants and agrees that it shall not: (i) except in connection with the Subordinate Loans or any Swap Agreement between Borrower and Bondowner Representative, (1) incur, create or assume any indebtedness for borrowed money except indebtedness represented by an invoice, statement of account, check, work request, purchase order or other similar document representing expenses relating to activities of Borrower undertaken in accordance with its formation documents or (2) transfer or lease the Project or any interest therein, except as permitted under Section 5.12 of the Deed of Trust; (ii) engage, directly or indirectly, in any business other than that arising out of or entering into this Loan Agreement and the other Loan Documents to which Borrower is a party and the ownership, management, leasing, construction, development, operation and maintenance of the Project, including the commercial space at the Property; (iii) commingle its assets with the assets of any other entity; (iv) partition the Property except as expressly permitted under the Deed of Trust; or (v) voluntarily file or consent to the filing of a petition for bankruptcy, reorganization, assignment for the benefit of creditors or similar proceeding under any federal or state bankruptcy, insolvency, reorganization or other similar law, without the unanimous consent of its partners. Borrower represents and warrants that as the date hereof it does not have any indebtedness or obligations which would cause it to be in violation of the foregoing covenants. -51- DWT 30207606v4 0088288-000026 Further, Borrower covenants that it will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger or asset sale; will no t materially modify its Partnership Agreement without the prior written consent of Bondowner Representative (it being understood that Bondowner Representative’s consent may be granted or withheld as to transfers of partnership interests in a manner consistent with this Loan Agreement and Section 5.12 of the Deed of Trust, may be withheld as to any amendment which reduces the obligations of the partners to contribute funds to Borrower below amounts necessary to maintain the Financial Requirements Analysis “in balance”, and shall not otherwise be unreasonably withheld); will pay all expenses of the Project from assets of Borrower; will maintain separate books and records and bank accounts; will at all times hold itself out to the public as a separate and distinct legal entity (including in its leasing activities, in entering into any contract and in preparing its financial statements); will file its own tax returns; and will cause its management to meet regularly to carry on its business. (b) Borrower shall do all things necessary to preserve and keep in full force and effect its existence, rights and privileges under the laws of the State and its right to own property or transact business in the State. Borrower further represents and warrants that it is, and, so l ong as any portion of the Loan shall remain unpaid, shall do all things necessary to continue to be, an entity which is formed or organized solely for the purpose of holding, directly, an ownership interest in the Project, does not engage in any business unrelated to such properties and the financing thereof, does not have any assets other than those related to its interest in the properties or the financing thereof or any indebtedness other than the Subordinate Loans, and as permitted by the Deed of Trust or the other Loan Documents, has its own separate books and records and its own accounts, in each case which are separate and apart from the books and records and accounts of any other entity and will maintain the same as official records, holds itself out as being an entity, separate and apart from any other entity and will conduct its business in its own name. (c) Borrower will not fail to correct any known misunderstanding regarding the separate identity of Borrower. (d) Borrower will not assume or guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of any other entity; will allocate fairly and reasonably any overhead for shared office space or facilities; will not pledge its assets for the benefit of any other person or entity; will not make loans to any person or entity; will not enter into or be a party to any transaction with its partners or its or their respective affiliates except (a) pursuant to its Partnership Documents as they exist as of the date of this Loan Agreement; or (b) in the ordinary course of business and on terms which are no less favorable to Borrower than would be obtained in a comparable arm’s-length transaction with an unrelated third party. (e) Any firm, corporation or partnership which can make the representations and warranties and satisfy the covenants set forth in this Section 8.4 shall constitute a “Single Purpose Entity.” ARTICLE 9. HAZARDOUS MATERIALS 9.1 SPECIAL REPRESENTATIONS AND WARRANTIES. Without in any way limiting the other representations and warranties set forth in this Loan Agreement, and after reasonable investigation and inquiry, Borrower hereby specially represents and warrants to the best of Borrower’s knowledge as of the date of this Loan Agreement as follows: (a) Hazardous Materials. Except as previously disclosed to Bondowner Representative in that certain (i) that certain Phase I Environmental Site Assessment dated as of August 28, 2016, prepared by Adanta, Inc. (“Adanta”), (ii) that certain Pre-Demolition Asbestos and Lead Paint Survey dated as of July 2016, prepared by Adanta, and (iii) that certain Phase I Environmental Site Assessment dated as of October 14, 2014, prepared by Adanta (collectively, the “Environmental Reports”), the Property and Improvements are not and have not been a site for the use, generation, manufacture, storage, treatment, release, threatened release, discharge, disposal, transportation or presence of any oil, flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated -52- DWT 30207606v4 0088288-000026 substances or similar materials, including, without limitation, any substances which are “hazardous substances,” “hazardous wastes,” “hazardous materials,” “toxic substances,” “wastes,” “regulated substances,” “industrial solid wastes,” or “pollutants” under the Hazardous Materials Laws, as described below, and/or other applicable environmental laws, ordinances and regulations (collectively, the “Hazardous Materials”). “Hazardous Materials” shall not include commercially reasonable amounts of such materials used in the ordinary course of construction and/or operation of the Property which are used and stored in accordance with all applicable environmental laws, ordinances and regulations. (b) Hazardous Materials Laws. The Property and Improvements are in compliance with all laws, ordinances and regulations relating to Hazardous Materials (“Hazardous Materials Laws”), including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, “CERCLA”), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; and all comparable state and local laws, laws of other jurisdictions or orders and regulations. (c) Hazardous Materials Claims. There are no claims or actions (“Hazardous Materials Claims”) pending or threatened against Borrower, the Pr operty or Improvements by any governmental entity or agency or by any other person or entity relating to Hazardous Materials or pursuant to the Hazardous Materials Laws. 9.2 INTENTIONALLY OMITTED. 9.3 HAZARDOUS MATERIALS COVENANTS. Borrower agrees as follows: (a) No Hazardous Activities. Borrower shall not cause or permit the Property or Improvements to be used as a site for the use, generation, manufacture, storage, treatment, release, discharge, disposal, transportation or presence of any Hazardous Materials, except for use of such Hazardous Materials in the ordinary course of constructing and/or operating a rental housing project subject to compliance with all Hazardous Materials Laws. (b) Compliance. Borrower shall comply and cause the Property and Improvements to comply with all Hazardous Materials Laws. (c) Notices. Borrower shall immediately notify Bondowner Representative in writing of: (i) the discovery of any Hazardous Materials on, under or about the Property and Improvements (except to the extent previously disclosed in the Environmental Reports, provided, however, that Borrower shall be obligated to deliver to Bondowner Representative notice of any further developments related to such previously disclosed Hazardous Materials); (ii) any knowledge by Borrower that the Property and Improvements do not comply with any Hazardous Materials Laws (except to the extent previously disclosed in the Environmental Reports, provided, however, that Borrower shall be obligated to deliver to Bondowner Representative notice of any further developments related to such previously disclosed non- compliance); (iii) any Hazardous Materials Claims; and (iv) the discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property, Improvements or any part thereof to violate Hazardous Materials Laws . (d) Remedial Action. In response to the presence of any Hazardous Materials on, under or about the Property or Improvements, Borrower shall immediately take, at Borrower’s sole e xpense, all remedial action required by any Hazardous Materials Laws or any judgment, consent decree, settlement or compromise in respect to any Hazardous Materials Claims. -53- DWT 30207606v4 0088288-000026 9.4 INSPECTION BY BONDOWNER REPRESENTATIVE. Upon reasonable prior notice to Borrower, Bondowner Representative, its employees and agents, may from time to time (whether before or after the commencement of a nonjudicial or judicial foreclosure proceeding) enter and inspect the Property and Improvements for the purpose of determining the existence, location, nature and magnitude of any past or present release or threatened release of any Hazardous Materials into, onto, beneath or from the Property and Improvements. 9.5 HAZARDOUS MATERIALS INDEMNITY. BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS BONDOWNER REPRESENTATIVE AND ISSUER, AND EACH OF THEIR RESPECTIVE GOVERNING BODIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES), WHICH BONDOWNER REPRESENTATIVE OR ISSUER MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF THE USE, GENERATION, MANUFACTURE, STORAGE, DISPOSAL, THREATENED DISP OSAL, TRANSPORTATION OR PRESENCE OF HAZARDOUS MATERIALS, EXCEPT ARISING FROM THE INDEMNIFIED PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN, ON, UNDER OR ABOUT THE PROPERTY OR IMPROVEMENTS. BORROWER SHALL IMMEDIATELY PAY TO BONDOWNER REPRESENTATIVE OR ISSUER, AS APPLICABLE, UPON DEMAND ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS BONDOWNER REPRESENTATIVE AND ISSUESR SHALL SURVIVE THE CANCELLATION OF THE NOTE AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE DEED OF TRUST. 9.6 LEGAL EFFECT OF SECTION. Borrower and Bondowner Representative agree that: (a) this Article 9 is intended as Bondowner Representative’s written request for information (and Borrower’s response) concerning the environmental condition of the real property security as required by California Code of Civil Procedure §726.5; and (b) each provision in this Article (together with any indemnity applicable to a breach of any such provision) with respect to the environmental condition of the real property security is intended by Issuer, Bondowner Representative and Borrower to be an “environmental provision” for purposes of California Code of Civil Procedure §736, and as such it is expressly understood that Borrower’s duty to indemnify Issuer and Bondowner Representative hereunder shall survive: (i) any judicial or non-judicial foreclosure under the Deed of Trust, or transfer of the Property in lieu thereof; (ii) the release and reconveyance or cancellation of the Deed of Trust; and (iii) the satisfaction of all of Borrower’s obligations under the Loan Documents. 9.7 RADON TESTING. Upon completion of the construction of the Improvements, Borrower shall cause each building in the Project to be tested for radon gas by an environmental consultant approved by Bondowner Representative. The radon testing shall be conducted (a) by an environmental consultant approved by Bondowner Representative, (b) in at least ten percent (10%) of the lowest level residential units in the Project, (c) in not less than one (1) unit in each building of the Project, and (d) in living rooms, dens or bedrooms (a nd not in bathrooms, kitchens, hallways or closets), and the results of such tests shall be set forth in a written report, in form and substance approved by Bondowner Representative. If such report discloses radon levels in excess of applicable federal, state or local health and safety guidelines (“Applicable Guidelines”), Borrower shall, at its sole cost and expense, take all necessary actions to reduce radon levels to a level below the Applicable Guidelines and shall deliver to Bondowner Representative an updated written report confirming such reduction in radon levels. 9.8 ASBESTOS AND LEAD BASED PAINT. Upon completion of the construction of the Improvements, Borrower shall deliver to Bondowner Representative a report prepared by an environmental consultant approved by Bondowner Representative and RETECHS, and in form and substance approved by Bondowner Representative and RETECHS, confirming the completion of the abatement work with respect to the Regulated Building Materials at the Project. ARTICLE 10. SET ASIDE LETTERS 10.1 SET ASIDE LETTERS. If, at Borrower’s request, Bondowner Representative issues any letter or letters (“Set Aside Letter”) to any governmental agency (“Obligee”) or bonding company (“Surety”) whereby -54- DWT 30207606v4 0088288-000026 Bondowner Representative agrees to allocate Loan proceeds for the construction of off-site, common area, or other improvements required by any governmental agency or for which bonds may be required (“Bonded Work”) in connection with the development of the Property, Borrower represents, warrants, covenants an d agrees as follows: (a) The sum which Borrower requests Bondowner Representative to allocate for the Bonded Work shall be sufficient to pay for the construction and completion cost of the Bonded Work in accordance with any agreement between Borrower and Obligee and a copy of such agreement shall be furnished to Bondowner Representative by Borrower prior to and as a condition precedent to the issuance by Bondowner Representative of any Set Aside Letter; (b) Bondowner Representative is irrevocably and unconditionall y authorized to disburse to the Obligee or Surety all or any portion of said allocated Loan proceeds upon a demand of such Surety or Obligee made in accordance with the terms and conditions of the Set Aside Letter; (c) Any disbursements or payments which Bondo wner Representative makes or may be obligated to make under any Set Aside Letter, whether made directly to the Surety, Obligee, or to others for completion of all or part of the Bonded Work, shall be deemed a disbursement under this Loan Agreement to or for the benefit or account of Borrower; (d) BORROWER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS BONDOWNER REPRESENTATIVE FROM ANY CLAIM, DEMAND, CAUSE OF ACTION, DAMAGE, LOSS OR LIABILITY, INCLUDING, WITHOUT LIMITATION, ANY COURT COSTS AND REASONABLE ATTORNEYS’ FEES AND EXPENSES, WHICH BONDOWNER REPRESENTATIVE MAY SUFFER OR INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF ITS ISSUANCE OF OR COMPLIANCE WITH ANY REQUESTED SET ASIDE LETTER, EXCEPT TO THE EXTENT ARISING FROM BONDOWNER REPRESENTATIVE’S GROSS NELIGENCE OR WILLFUL MISCONDUCT. BORROWER SHALL PAY ANY INDEBTEDNESS ARISING UNDER THIS INDEMNITY TO BONDOWNER REPRESENTATIVE IMMEDIATELY UPON DEMAND OF BONDOWNER REPRESENTATIVE. BORROWER’S DUTY TO DEFEND, INDEMNIFY AND HOLD HARMLESS BONDOWNER REPRESENTATIVE HEREUNDER SHALL SURVIVE THE RELEASE AND CANCELLATION OF THE NOTE AND THE FULL OR PARTIAL RELEASE OR RECONVEYANCE OF THE DEED OF TRUST OR OTHER LOAN DOCUMENTS; (e) Bondowner Representative shall have no obligation to release any collateral or security under the Loan Documents unless and until Bondowner Representative has received a full and final written release of its obligations under each Set Aside Letter; and (f) The fee for issuing each Set Aside Letter hereunder shall be one and one -half percent (1.50%) per annum of the Set Aside Letter amount. ARTICLE 11. COVENANTS OF BORROWER 11.1 COMPLIANCE WITH COVENANTS. So long as this Loan Agreement continues in effect, and until the full and final repayment of the Loan and all indebtedness of Borrower to Bondowner Representative, Borrower shall keep each of the covenants set forth below, elsewhere herein, in the Loan Documents, in the Hazardous Materials Indemnity Agreement (Unsecured), in the Indenture, in the Regulatory Agreement, and in the documents relating to the LIHTC. Borrower shall comply with all existing and future laws, regulations, orders, building restrictions and requirements of, and all agreements with and commitments to, all governmental, judicial or legal authorities having jurisdiction over the Property, including those pertai ning to the sale, leasing or financing of the Property, and with all covenants and restrictions, whether recorded or not, affecting the Property (all of which shall be considered part of the Requirements). 11.2 EXPENSES. Borrower shall immediately pay Bondo wner Representative upon demand all costs and expenses incurred by Bondowner Representative in connection with: (a) the preparation of this Loan Agreement, all other Loan Documents, and Other Related Documents contemplated hereby; (b) the administration -55- DWT 30207606v4 0088288-000026 of this Loan Agreement, the Indenture, the other Loan Documents and Other Related Documents for the term of the Loan; (c) the enforcement or satisfaction by Bondowner Representative of any of Borrower’s obligations under this Loan Agreement, the other Loan Documents, the Indenture, or the Other Related Documents and (d) any revisions, extensions, renewals, refinancings, additional disbursements or “workouts” of the Loan, and in the exercise of any of Bondowner Representative’s rights or remedies under this Loan Agreement. For all purposes of this Loan Agreement, Bondowner Representative’s costs and expenses shall include, without limitation, all recording and escrow charges, appraisal fees, mortgage taxes, cost engineering and inspection fees, legal fees and expenses, administration/documentation expenses (including without limitation photocopying, postage, telephone, messenger, fax, private express mail, etc.), accounting fees, environmental consultant fees, auditor fees, UCC filing fees and UCC vendor fees, flood certification vendor fees, tax service vendor fees and the cost to Bondowner Representative of any recording and filing fees, escrow fees, title insurance premiums, title surveys, survey invoices, legal fees, appraisal and inspection fees, reconveyance and notary fees. Borrower recognizes and agrees that formal written appraisals of the Property and Improvements by a licensed independent appraiser may be required by Bondowner Representative’s internal procedures and/or federal regulatory reporting r equirements on an annual and/or specialized basis and that Bondowner Representative may, at its option, require inspection of the Property and Improvements by an independent supervising architect and/or cost engineering specialist: (i) prior to each advance; (ii) at least once each month during the course of construction even though no disbursement is to be made for that month; (iii) upon completion of the Improvements; and (iv) at least semi-annually thereafter. At its option, Bondowner Representative may make disbursements from the Loan to cover any expenses or charges which are to be borne by Borrower, including, but not limited to, the cost of any required inspections and/or certifications. If any of the services described above are provided by an emp loyee of Bondowner Representative, Bondowner Representative’s costs and expenses for such services shall be calculated in accordance with Bondowner Representative’s standard charge for such services. 11.3 ERISA COMPLIANCE. Borrower shall at all times comply with the provisions of ERISA with respect to any retirement or other employee benefit plan to which it is a party as employer, and as soon as possible after Borrower knows, or has reason to know, that any Reportable Event (as defined in ERISA) with respect to any such plan of Borrower has occurred, it shall furnish to Bondowner Representative a written statement setting forth details as to such Reportable Event and the action, if any, which Borrower proposes to take with respect thereto, together with a copy of the notice of such Reportable Event furnished to the Pension Benefit Guaranty Corporation. 11.4 TAX CREDIT INVESTMENT. Pursuant to the terms and conditions of the Partnership Agreement, Investor Limited Partner has obtained a limited partnership interest in the Borrower and is obligated to make Capital Contributions to the Borrower. The Borrower shall: (a) timely satisfy its obligations and cause General Partner to timely satisfy its obligations required for the funding of the Capital Contributions; (b) not commit any breach or default prior to Conversion under the Partnership Agreement; (c) maintain the Partnership Agreement in full force and effect until all sums owing to Bondowner Representative with respect to the Loan as a condition to Conversion have been paid; and (d) not consent to any termination, amendment or modification of the Partnership Agreement without Bondowner Representative’s prior written consent (not to be unreasonably withheld) or as otherwise permitted under the terms of the Loan Agr eement; provided, however, that any amendment or modification of the Partnership Agreement that solely effectuates a Permitted Transfer shall be permitted without Bondowner Representative’s prior written consent, so long as, within ten (10) days thereafter, Borrower notifies Bondowner Representative in writing and delivers Bondowner Representative a copy of such amendment or modification, and (e) except for the Initial Capital Contribution and except as otherwise expressly provided for herein, not use any of the proceeds of the Capital Contributions for any purpose other than for payment to Bondowner Representative until Conversion has occurred . 11.5 OTHER INVESTMENT IN BORROWER. Any investments in or contributions to Borrower (other than the Capital Contributions) required to be made by any shareholder, general partner or limited partner, as the case may be, shall be made at the times and on the terms and conditions set forth in any documents or agreements so providing as such documents or agreements exist as of the Effective Date. 11.6 TAX EXEMPTION. Borrower shall, when eligible to do so, take all action necessary to qualify for, and obtain and maintain the maximum exemption from all general property taxes for the property under the California Revenue and Taxation Code Section 214(g). In addition, Borrower shall take, or cause managing General -56- DWT 30207606v4 0088288-000026 Partner to take, all actions necessary to obtain and maintain tax exempt status pursuant to Section 501(c)(3) of the Code. 11.7 PROCEEDS OF THE CAPITAL CONTRIBUTIONS. Other than the Initial Capital Contribution and until Conversion, none of the proceeds of the Capital Contributions shall be used for any purpose other than for payment to Bondowner Representative or payment of Project Costs until all sums owing to Bondowner Representative under the Loan Documents have been paid in full, unless Bondowner Representative consents in writing to such other use. Further, Borrower covenants and agrees that until Conversion, Borrower will comply and cause its General Partner to comply with all obligations and requirements under its Partnership Documents necessary to cause the Investor Limited Partner to timely fund all Capital Contributions to Borrower for payment to Bondowner Representative until all sums owing to Bondowner Representative under the Loan Documents have been paid in full. After the Closing Date until Conversion, on or before the dates Investor Limited Partner is required to fund the Capital Contributions under Section 1.1 hereof, Borrower shall pay and deliver to Bondowner Representative, or direct Investor Limited Partner to pay such Capital Contribution directly to Bondowner Representative, to , to either pay down the Loan or apply such Capital Contributions to Project Costs in accordance with the Disbursement Budget. 11.8 LEASING. After completion of the construction of the Improvements, Borrower shall lease one hundred percent (100%) of the Improvements (other than the manager’s unit(s)) to tenants and such leases will be at rental rates consistent with the low income, tenant selection, and rent requirements of TCAC, the Regulatory Agreement, the HUD Documents and any other Restrictions, with one unrestricted manager’s unit permitted. 11.9 APPROVAL OF LEASES. All leases and renewals of leases of all or any part of the Property and Improvements entered into after the Effective Date shall be upon terms consistent with the Approved Form. All standard lease forms, and any material deviation from the Approved Form shall be approved by Bondowner Representative, and if required pursuant to agreements with Investor Limited Partner, by Investor Limited Partner, in writing prior to execution of any such lease. All residential leases (on the Approved Form), and other leases, rental agreements or residency agreements entered into by Borrower, and all indebtedness arising thereunder or secured thereby, shall contain a provision stating that such leases and such tenants’ rights thereunder are unconditionally junior and subordinate to the Regulatory Agreement, the Deed of Trust and the other L oan Documents, and all indebtedness arising thereunder or secured thereby. 11.10 INCOME TO BE APPLIED TO DEBT SERVICE. Borrower shall first apply all income from leases, and all other income derived from the Property, to pay costs and expenses associated with the ownership, maintenance, development, operation, and marketing of the Borrower’s interest in the Property and the Improvements, including all amounts then required to be paid under the Loan Documents, before using or applying such income for any other purpose. Prior to Conversion, (a) all Net Monthly Cash Income shall be used first to pay monthly interest payments coming due under the Loan, other amounts payable under the Loan Documents and expenses of construction and operation of the Property, except as otherwise provided in the Loan Documents, and (b) except for payment so Developer Fees permitted hereunder, asset management fees and Tax Credit adjuster payments payable in accordance with the Partnership Agreement, Borrower may not distribute any inco me to any of its members, partners, or shareholders, allow any member, partner, or shareholder to withdraw capital or make any payments on indebtedness owed to any member, partner, or shareholder. After the Conversion Date, except for payments of Developer Fees permitted hereunder, asset management fees and Tax Credit adjuster payment spayable in accordance with the Partnership Agreement, Borrower may not distribute any income to any of its members, partners, or shareholders, allow any member, partner, or shareholder to withdraw capital, or make any payments on indebtedness owed to any member, partner, or shareholder, unless all property expenses then due have been paid in full. 11.11 SUBDIVISION MAPS. Prior to recording any final map, plat, parcel map, lot line adjustment or other subdivision map of any kind covering any portion of the Property (collectively, “Subdivision Map”), Borrower shall submit such Subdivision Map to Bondowner Representative for Bondowner Representative’s review and approval, which approval shall not be unreasonably withheld. Within ten (10) Business Days after Bondowner Representative’s receipt of such Subdivision Map, Bondowner Representative shall provide Borrower written notice if Bondowner Representative disapproves of said Subdivision Map. Bondowner Representative shall be deemed to have approved the Subdivision Map if such notice is not provided to Borrower. Within five (5) Business Days after -57- DWT 30207606v4 0088288-000026 Bondowner Representative’s request, Borrower shall execute, acknowledge and deliver to Bondowner Representative such amendments to the Loan Documents as Bondowner Representative may reasonably require to reflect the change in the legal description of the Property resulting from the recordation of any Subdivision Map. In connection with and promptly after the recordation of any amendment or other modification to the Deed of Trust recorded in connection with such amendments, Borrower shall deliver to Bondowner Representative, at Borrower’s sole expense, a title endorsement to the Title Policy in form and substance satisfactory to Bondowner Representative insuring the continued first priority lien of the Deed of Trust, subject only to the Permitted Prior Encumbrances. Subject to the execution and delivery by Borrower of any documents required u nder this Section, Bondowner Representative shall, if required by applicable law, sign any Subdivision Map approved, or deemed to be approved, by Bondowner Representative pursuant to this Section. 11.12 OPINION OF LEGAL COUNSEL. Borrower shall provide, at Borrower’s expense, at Closing and on the Conversion Date, if requested by CCRC, an opinion of legal counsel in form and content satisfactory to Bondowner Representative which opinion shall be transferable and shall state that Bondowner Representative’s successors and assigns as holder of the Note are permitted to rely on the opinion, to the effect that: (a) upon due authorization, execution and recordation or filing as may be specified in the opinion, each of the Loan Documents shall be legal, valid and binding instruments, enforceable against the makers thereof in accordance with their respective terms; (b) Borrower is duly formed and has all requisite authority to enter into the Loan Documents; and (c) such other matters, incident to the transactions contemplated hereby, as Bondowner Representative may reasonably require. 11.13 FURTHER ASSURANCES. Upon Bondowner Representative’s request and at Borrower’s sole cost and expense, Borrower shall execute, acknowledge and deliver any other instruments and perform any o ther acts necessary, desirable or proper, as determined by Bondowner Representative, to carry out the purposes of this Loan Agreement and the other Loan Documents or to perfect and preserve any liens created by the Loan Documents. 11.14 ASSIGNMENT. Without the prior written consent of Bondowner Representative, Borrower shall not assign Borrower’s interest under any of the Loan Documents, or in any monies due or to become due thereunder, and any assignment without such consent shall be void. In this regard, Borrower acknowledges that Bondowner Representative would not make this Loan except in reliance on Borrower’s expertise, reputation, prior experience in developing and constructing commercial real property, Bondowner Representative’s knowledge of Borrower, and Bondowner Representative’s understanding that this Loan Agreement is more in the nature of an agreement involving personal services than a standard loan where Bondowner Representative would rely on security which already exists. Bondowner Representative shall not unreasonably withhold its consent to a transfer to Developer pursuant to the purchase option and right of first refusal to be granted to Developer in connection with the Partnership Agreement. 11.15 COMPLIANCE WITH LAWS. Borrower shall comply with all laws and requirements of Governmental Authorities and all rights of third parties, relating to the Property or Borrower’s business or other properties, and deliver to Bondowner Representative from time to time, within 10 days of Bondowner Representative’s request therefor, evidence satisfactory to Bondowner Representative that Borrower has complied with any such law, requirement or right. 11.16 MAINTENANCE AND SECURITY FOR PROJECT. Borrower shall maintain the Project in good condition and repair subject to reasonable wear and tear (such condition and repair to be consistent with that of competing properties), take all measures reasonably required by Bondowner Representative to protect the physical security of the Project, and not permit any waste or damage wit h respect to the Project. 11.17 NOTICE OF CERTAIN MATTERS. Borrower shall give notice to Bondowner Representative and the Issuer, within 7 days of Borrower’s actual knowledge thereof, of each of the following: (a) any litigation or claim of any kind affecting or r elating to Borrower or to Guarantor until the Conversion Date, and involving an amount in excess of $50,000.00, and any litigation or claim of any kind that might subject Borrower to liability in excess of $50,000.00, whether covered by insurance or not; -58- DWT 30207606v4 0088288-000026 (b) any aspect of the Project that is not in conformity with the Plans and Specifications in a material respect; (c) the creation or imposition of any mechanic’s lien, materialmen’s lien or other lien against the Project unless Borrower shall post statutory bonds or other security satisfactory to Bondowner Representative sufficient to cause the removal of such lien; (d) the occurrence of any default that remains uncured beyond any applicable notice and cure period by Borrower or any other party under any agreement rela ting to the development of the Project, or the receipt by Borrower of any notice of default under any agreement relating to the development of the Project; (e) the occurrence of any dispute between Borrower and any Governmental Authority relating to the Project, the adverse determination of which might materially affect the Project; (f) the occurrence of any threat or commencement of proceedings in condemnation or eminent domain relating to Borrower’s ownership of the Project; (g) the use of any trade name hereafter used by Borrower in connection with the Project, other than the use of the trade name selected by Borrower prior to lease-up and occupancy of the Project; (h) any change in Borrower’s principal place of business; (i) the occurrence of any Default or event which, with the giving of notice or the passage of time or both, would constitute a Default; (j) the occurrence of any “Default” or “Event of Default” under the AHAP Contract, any HAP Contract, any HUD Document, any Subordinate Loan Document or any Restrictions, or the receipt by Borrower of any notice of “Default” or “Event of Default” under the AHAP Contract, any HAP Contract, any HUD Documents, any Subordinate Loan Document or any Restrictions; (k) the occurrence of any other event or condition causing a material adverse change in the financial condition or operations of Borrower, or in the physical condition of the Property; and (l) any communication, whether written or oral, that Borrower may receive from any governmental, judicial or legal authority, giving notice of any claim or assertion that the Property fail in any material respect to comply with any of the Requirements or any applicable governmental law, 11.18 LIENS ON PROPERTY. Borrower shall not cause or suffer to become effective any lien, restriction or other title limitation affecting any part of the Property other than mechanics’ liens permitted pursuant to Section 4.3(g), the Regulatory Agreement, the Deed of Trust, the Permitted Encumbrances, the regulatory agreements and deeds of trust relating to the Subordinate Lo ans and any other liens or encumbrances previously approved by Bondowner Representative in writing and the inchoate liens securing the payment of taxes and assessments not delinquent. Borrower acknowledges that, with any project of the magnitude of the Pro ject, modifications of the Plans and Specifications and Loan Documents may be necessary from time to time and that the existence of junior lienholders, who would be required to consent to such modifications in order to protect the priority of the lien of the Deed of Trust, could impair the expeditious completion of the Project, to the detriment of all parties. 11.19 PROHIBITION OF TRANSFER. (a) Borrower represents, agrees and acknowledges that: (i) Development of real property is a highly complex activity which requires substantial knowledge of law and business conditions and practices, and an -59- DWT 30207606v4 0088288-000026 ability to control, coordinate and schedule the many factors affecting such development. Experience, financial stability, managerial ability and a good reputation in the business community enhance a developer’s ability to obtain market rents (or maximum permissible rents pursuant to the Regulatory Agreement) and/or sales prices (if applicable) and to induce cooperation in scheduling and are taken into account by Bondowner Representative in approving loan applications. (ii) Borrower has represented to Bondowner Representative, not only in the representations and warranties contained in the Loan Documents, but also in its initial credit application and in all of the negotiations connected with the Loan, certain facts concerning Borrower’s financial stability, managerial and operational ability, reputation, skill, and creditworthiness. Bondowner Representative has relied upon these representations and warranties as a substantial and material consideration in its decision to enter into this Loan Agreement. (iii) The conditions and terms provided in this Loan Agreement were induced by these representations and warranties and would not have been made available by Bondowner Representative in the absence of these representations and warranties. (iv) Borrower’s financial stability and managerial and operational ability and that of those persons or entities having a direct or beneficial interest in Borrower are a substantial and material consideration to any third parties who have entered or will enter into agreements with Borrower. (v) Bondowner Representative has relied upon the skills and services offered by such third parties and the provision of such skills and services is jeopardized if Borrower breaches its covenants contained below regarding transfers. (vi) Except as otherwise permitted under Section 11.19(b), a transfer of possession of or title to the Property, or a change in the person or entity operating, developing, constructing or managing the Property would substantially increase the risk of Default under the Loan Documents and significantly and materially impair and reduce Bondowner Representative’s security for the obligations under this Loan Agreement. (b) In consideration of Bondowner Representative’s induced reliance on such representations, warranties and agreements, Borrower shall not make any transfer prohibited by Section 5.12 of the Deed of Trust. Bondowner Representative acknowledges that Borrower will grant or may grant an option to purchase the Project during year fifteen (15) of the Tax Credit compliance period and a right of first refusal with respect to transfers of the Project to the General Partner of the Borrower. The grant of such option and/or such right of first refusal shall not constitute a violation of this Section 11.19, but any purchase of the Project pursuant to such option or right of first refusal shall constitute a violation of this Section 11.19 unless such purchase is approved by Bondowner Representative or permitted pursuant to the Loan Documents. (c) Without the prior written consent of Bondowner Representative, Borrower shall not assign Borrower’s interest under any of the Bond Documents or Loan Documents, or in any monies due or to become due thereunder, and any assignment without s uch consent shall be void. (d) Notwithstanding any other provision of this Loan Agreement or the other Loan Documents to the contrary: -60- DWT 30207606v4 0088288-000026 (i) The Investor Limited Partner of the Borrower shall be permitted to remove the general partner of Borrower for cause and substitute a new general partner in its place in accordance with the terms and conditions of the Partnership Agreement; provided, however, that (A) Investor Limited Partner shall obtain the prior written consent of Bondowner Representative to such removal and substitution, which consent shall not be unreasonably withheld; provided, however, that no such consent shall be required if the substitute general partner is an Investor Affiliate; (B) Investor Limited Partner can demonstrate to Bondowner Representative’s reasonable satisfaction that the Loan is “in balance” notwithstanding any loss of property tax exemption which may result in such substitution, (C) the substitute general partner is admitted no later than sixty (60) days after the date of removal of the general partner or such longer period of time as Bondowner Representative may consent to, which consent shall not be unreasonably withheld so long as Investor Limited Partner is diligently working to admit the substitute general partner, provided, however, that in no event shall such period be extended past ninety (90) days after the date of removal of the general partner, and (D) the substitute general partner shall execute and deliver to Bondowner Representative such documents as Bondowner Representative may reasonably require in order to evidence its assumption of all of the rights and obligations of the removed general partner under all the Loan Documents. (ii) The Investor Limited Partner may make a transfer of its interest in Borrower as a result of the exercise of the purchase option granted to General Partner or an affiliate of General Partner as set forth in the Partnership Documents. (iii) The Investor Limited Partner may make a Permitted Transfer of its interest in Borrower to an Investor Affiliate. 11.20 MANAGEMENT OF PROPERTY. Without the prior written consent of Bondowner Representative, Borrower shall not enter into any agreement providing for the management, leasing or operation of the Property or Improvements. Bondowner Representative hereby approves of the P roperty Management Agreement by and between Borrower and the Property Manager. During the term of the Loan, Property Manager shall provide management for the Property, pursuant to the Property Management Agreement. Borrower shall not (i) amend, modify or waive any default under the Property Management Agreement, or any successor thereof, without Bondowner Representative’s reasonable prior written consent, or (ii) dismiss or replace the Property Manager without Bondowner Representative’s reasonable prior written consent. 11.21 PARTNERSHIP DOCUMENTS; NO AMENDMENTS. Borrower shall fully comply with and perform all of the obligations of Borrower under the Partnership Documents. Subject to Section 8.4(a), Borrower shall not amend, modify or terminate any of the following documents without Bondowner Representative’s prior written consent and shall keep in full force and effect the following documents: (a) the Partnership Documents; (b) the Subordinate Loan Documents; (c) the AHAP Contract and any HAP Contract; and (d) the HUD Documents. Notwithstanding the foregoing, General Partner shall be entitled to amend the Partnership Agreement without Bondowner Representative’s prior written consent (i) to effectuate any transfer and admission which is otherwise permitted without consent hereunder or under the Deed of Trust, (ii) to correct scrivener’s errors in the Partnership Agreement, or (iii) to conform the Partnership Agreement to the requirements of Section 42 of the Internal Revenue Code and the regulations promulgated thereunder, or -61- DWT 30207606v4 0088288-000026 the requirements of TCAC. After any change to the Partnership Agreement, whether it requires Bondowner Representative’s consent or not, Borrower shall promptly provide a revised version thereof to Bondowner Representative. Further, during the term of the Loan, no General Partner shall jeopardize in a material way the Property or the financial viability of the Borrower by (i) violating its fiduciary responsibilities under the Partnership Agreement, or (ii) willfully violating any law, regulation or order applicable to the Partnership, and such violations are not remedied or cured as permitted, in the time frames provided, under the Partnership Agreement. Borrower shall notify Bondowner Representative and promptly deliver to Bondowner Representative copies of all written notices by any party under the Partnership Agreement. All funds received by Borrower from the Capital Contributions of Investor Limited Partner pursuant to the Partnership Documents until Conversion has occurred, except for a portion which Bondowner Representative expressly agrees may be used to pay certain syndication fees, developer fees and other permitted Project Costs, as set forth in Exhibit C attached hereto, are to be paid promptly to Bondowner Representative for application to costs of construction of the Improvements and other approved development expenses, payment of developer fees, funding of the Operating Reserve or repayment of the Loan as set forth in this Loan Agreement. Borrower shall not (i) allow or enable Borrower to issue any partnership interests or equity interests other than as set forth in the Partnership Agreement; (ii) dissolve the Borrower; (iii) cause the removal or replacement of General Partner other than as provided in Sections 11.19(b), 11.19(d) or 15.41; or (iv) except as otherwise permitted under the terms of the Partnership Agreement, materially reduce the amount of the Capital Contributions or alter the time for payment or impair or alter the obligations of the Investor Limited Partner to make or fully fund Capital Contributions in the amounts required pursuant to Section 4.1(m) of this Loan Agreement, provided however that this Section 11.21 shall not prevent the Borrower from accepting any Capital Contributions under the Partnership Agreement; and the Partnership Documents shall remain in full force and effect until all sums owing with respect to the Loan have been paid, subject to any purchase of Limited Partner’s interests in Borrower upon the terms and conditions set forth in this Loan Agreement. 11.22 RESTRICTIONS. Except for the HUD Use Agreement, the Regulatory Agreement, the HOME/CDBG Regulatory Agreement, the County Regulatory Agreement, the City Regulatory Agreement, the Infill Grant Regulatory Agreement and an extended use agreement pursuant to Section 15.44 with the State of California, acting through TCAC, Borrower shall not execute any agreement or document to restrict the use of the Improvements (or which otherwise limit development or sale of the Property or Improvements) other than as expressly consented to by Bondowner Representative, and, except for the Regulatory Agreement , any such restrictions are, and shall remain subordinate to the Deed of Trust and repayment of the Loan and shall not bind any transferee of the Property who receives title to the Property after foreclosure under the Deed of Trust, or obtains title by deed in lieu of foreclosure under the Deed of Trust. 11.23 TAXES AND IMPOSITIONS. Subject to Borrower’s right to claim exemptions under California Revenue and Taxation Code Section 214, Borrower shall pay or cause to be paid, prior to delinquency, all of the following (collectively, the “Impositions”): (a) all general and specific real property taxes and assessments imposed on the Property; (b) all other taxes and assessments and charges of every kind that are assessed upon the Property (or upon the owner and/or operator of the Property) and that create or may create a lien upon the Property (or upon any personal property or fixtures used in connection with the Property), including witho ut limitation nongovernmental levies and assessments pursuant to applicable covenants, conditions or restrictions; and (c) all license fees, taxes and assessments imposed on Bondowner Representative (other than Bondowner Representative’s income or franchise taxes) which are measured by or based upon (in whole or in part) the amount of the obligations secured by the Property. If permitted by law, Borrower may pay or cause to be paid any Imposition in installments (together with any accrued interest). Borro wer shall not be required to pay or cause to be paid any Imposition so long as (d) its validity is being actively contested in good faith and by appropriate proceedings, (e) Borrower has demonstrated to Bondowner Representative’s reasonable satisfaction that leaving such Imposition unpaid pending the outcome of such proceedings could not result in conveyance of the Property in satisfaction of such Imposition or otherwise impair Bondowner Representative’s interests under the Loan Documents and (f) if Bondowner Representative shall so request, Borrower has furnished Bondowner Representative with a bond or other security satisfactory to Bondowner Representative in an amount not less than 100% of the applicable claim. Upon demand by Bondowner Representative from time to time, Borrower shall (g) deliver to Bondowner Representative, within 30 -62- DWT 30207606v4 0088288-000026 days following the due date of Imposition, evidence of payment or other satisfaction of such Imposition reasonably satisfactory to Bondowner Representative and (h) furnish to Bondowner Representative a tax reporting service for the Property of a type and duration, and with a company reasonably satisfactory to Bondowner Representative. The sole member of Borrower’s General Partner shall take all actions necessary to obtain and maintain tax exempt status pursuant to 501(c)(3) of the code. 11.24 COMPLIANCE WITH LIHTC. Neither General Partner nor Investor Limited Partner shall commit a breach or default under the Partnership Agreement and the Partnership Agreement shall remain in full force and effect until all sums owing with respect to the Loan have been repaid in full. Borrower further covenants and agrees: (a) To observe and perform all obligations imposed on Borrower in connection with the LIHTC, including, without limitation, the obligation to have the Property “placed in serve” (within the meaning of Section 42 of the Code) in a timely manner, and to operate the residential units of the Property or to use Borrower’s best efforts to cause the appropriate parties to operate the same in accordance with all statutes and regulations governing the LIHTC; (b) Not to release, forego, alter, amend or modify its rights to the LIHTC without Bondowner Representative’s prior written consent, which Bondowner Representative may give or withhold in Bondowner Representative’s reasonable discretion; (c) Not to execute any residential lease of all or any portion of the Property or Improvements which are required to be occupied by low and very-low income tenants that does not comply fully with all requirements and regulations governing the LIHTC, except with Bondowner Representative’s prior written consent, which Bondowner Representative may give or withhold in its sole and absolute discretion; (d) To cause to be kept all records, and cause to be made all elections and certifications, pertaining to the number and size of apartment units, occupancy thereof by tenants, income level of tenants, set-asides for low-income tenants, and any other matters now or hereafter required to qualify for and maintain the LIHTC in connection with the low-income occupancy of the Property. (e) To comply with the appropriate minimum low-income set-aside requirements under the Internal Revenue Code or applicable federal regulations (“Federal Laws”) imposed by TCAC, and all California laws and regulations (“State Laws”) applicable to the creation, maintenance and continued availability of the LIHTC; (f) To certify compliance with the set-aside requirement and report the dollar amount of qualified basis and maximum applicable percentage, date of placement in service and any other information required for the LIHTC at such time periods as required by Federal Laws, TCAC or State Laws for such LIHTC; (g) To set aside the appropriate number of units for households with incomes meeting the required standards of the Contra Costa County median income under the Regulatory Agreement and the other Restrictions, in order to qualify for the LIHTC (as determined pursuant to Section 42 of the Code and/or State Laws), adjusted for family size, and to operate and maintain a ll such units as “low-income units” qualifying for the LIHTC under Section 42(i)(3) of the Code and/or State Laws; (h) To exercise good faith in all activities relating to the operation and maintenance of the Property in accordance with the requirement of Fede ral Laws and State Laws; and (i) To promptly deliver to Bondowner Representative true and correct copies of all notices or other documents or communications received or given by Borrower with regard to or relating in any way to the partnership interests, the LIHTC. Immediately upon receipt thereof, Borrower must deliver to Bondowner Representative a copy of the basis audit (as required by Section 42 of the Code) for the -63- DWT 30207606v4 0088288-000026 Property (including a certificate of Borrower’s accountant or attorneys if requested by Bon downer Representative); the first annual income certification for all tenants of the Property showing that the tenants are qualified for purposes of Borrower’s obtaining LIHTC; and the fully-completed Form 8609 (required by the Code) issued for the Property. Borrower must deliver promptly to Bondowner Representative such other certificates, income certificates, reports, and information as Bondowner Representative may request. 11.25 TAX CREDIT DOCUMENTATION. Borrower shall timely prepare or otherwise obtain and file with all appropriate agencies all documentation required in connection with qualifying for and obtaining the LIHTC. Borrower shall submit to Bondowner Representative, immediately upon receipt, a copy of each required document, including (but not necessarily limited to) each of the following: (a) verification, in form reasonably acceptable to Bondowner Representative, regarding the availability of LIHTC with respect to the Improvements in the approximate amount of $1,080,548 annually for ten (10) years; (b) a certification in form acceptable to Bondowner Representative confirming the calculation of the amount of the LIHTC; (c) a copy of application for the LIHTC, together with receipts indicating payment of any required fees in connection with the LIHT C; (d) form of restriction agreement(s) with regard to the LIHTC as required by TCAC; (e) subsidy layering review required by Section 911 of the Housing and Community Development Act of 1992, if applicable; (f) all other written communications to or from TCAC and any other applicable governmental authority relating to the Property or the Improvements; in each case, provided that all or any portion of the Loan or any other sum to which Bondowner Representative shall be entitled with respect to the Loan remains unpaid. Borrower shall also keep Bondowner Representative timely advised of all other contacts with TCAC and any other applicable governmental authority by or on behalf of Borrower with respect to the Property or the Improvements. Borrower shall furt her submit all documentation relating to the LIHTC and evidence of compliance to Bondowner Representative on an annual basis concurrently with the submission thereof to any applicable governmental authority, including, but not limited to, TCAC, which shall in any event occur in a timely manner as required in connection with the LIHTC. 11.26 ADDITIONAL FINANCING. Other than the sources of financing identified in this Loan Agreement, including the Subordinate Loans, Borrower shall not, without the prior written c onsent of Bondowner Representative, receive any other financing for the construction of the Improvements (other than partner loans permitted under the terms of the Partnership Agreement, provided that such partner loans do not further encumber the Property or Improvements) and shall not further encumber the Property or Improvements including without limitation, entering into a land sale contract, sale contract or leaseback or conditional sales contract for the Property or Improvements or any portion thereof. 11.27 PERMITS, LICENSES AND APPROVALS. Borrower shall properly obtain, comply with and keep in effect all governmental approvals, permits, certificates, licenses, inspections, consents and franchises (collectively, the “Licenses”) necessary to continue to conduct its business and to own, market, occupy, lease and operate the Property and the Improvements, including without limitation, all Licenses related to environmental laws, and shall promptly deliver copies thereof to Bondowner Representative. 11.28 PUBLICITY. Bondowner Representative shall have the right to refer to the Property in its own promotional and advertising materials. Borrower shall not post signs identifying Bondowner Representative as its lender, or otherwise identify Bondowner Representative as its lender, except with Bondowner Representative’s prior written consent in each instance. 11.29 AFFORDABILITY COVENANTS. Throughout the term of the Loan, the requisite number of residential apartment units in the Improvements shall rent at such rents, and to households having such incomes, as required by the most restrictive between the (i) Regulatory Agreement and (ii) any other use agreements, regulatory agreements or other restrictive agreements recorded against the Property, including but not limited to the HUD Use Agreement, the HOME/CDBG Regulatory Agreement, the County Regulatory Agreement, the City Regulatory Agreement and the Infill Grant Regulatory Agreement, and (iii) any agreements, restrictions or other Requirements to which Borrower or the Property may be subject, including (but not limited to) those of the State of California, acting through TCAC in connection with an allocation of the LIHTC. The foregoing rent and income restrictions shall apply to the Property for so long as the Loan or any port ion thereof remains outstanding or such later time as may be provided under the foregoing documents. Each year during the Term of the Loan, Borrower shall provide Bondowner Representative with a copy of Borrower’s annual tenant and rent certification and qualification report made (i) to any subordinate lender or the Housing Authority, (ii) pursuant to the Regulatory Agreement, (iii) to -64- DWT 30207606v4 0088288-000026 TCAC in connection with the tax credit allocation, and (iv) those governmental agencies charged with determining Borrower’s compliance with regulations applicable to the LIHTC claimed by Borrower for the Property. 11.30 SUBORDINATION OF INDEBTEDNESS AND REGULATORY RESTRICTIONS. To the fullest extent allowed by law, any deed of trust, mortgage, regulatory agreement, covenant or re strictive agreement or other instrument evidencing, securing or related to any financing or regulatory requirements imposed by TCAC or any other party on Borrower or the Property, and any obligations related thereto, shall be and remain subordinate to the Loan, and shall be subordinated to the Deed of Trust by an instrument or instruments satisfactory to Bondowner Representative and its counsel, with the exception of the HUD Use Agreement, the Regulatory Agreement and the other Permitted Prior Encumbrances. No proceeds of collateral or payments of principal, interest or other amounts due and owing with respect to any other obligations described herein, following a Default under the Loan Documents, shall be received by obligee until the Loan shall have been paid in full. 11.31 IMPOUNDS FOR REAL PROPERTY TAXES. Bondowner Representative shall have the right, following Conversion, to require Borrower to establish an account for the payment of property taxes and all other expenses required to be paid under the Deed of Trust on the terms and conditions set forth in the Deed of Trust. After a Default has occurred, whether or not the same has thereafter been cured, at the request of Bondowner Representative, Borrower shall deposit with Bondowner Representative, in month ly installments in advance on the first day of each month, an amount sufficient, as reasonably estimated by Bondowner Representative, to pay all Impositions (as defined in the Deed of Trust) for the Property. 11.32 NO SALE OF PROPERTY. Except as permitted in this Loan Agreement, the Regulatory Agreement and the Deed of Trust, Borrower shall not sell, convey, or otherwise transfer or dispose of its interest in any Property, nor contract to do any of the foregoing, without the prior written consent of Bondowner Representative in each instance, except such Property as is customarily transferred in the ordinary course of operation of residential multifamily rental developments. 11.33 NONRESIDENTIAL LEASES. Leases entered into from and after the Conversion Date other than for residential units within the Improvements, including, without limitation, leases for laundry equipment, vending machines, administrative space by affiliates of Borrower, General Partner, Property Manager, or otherwise, and commercial space within the Improvements (if any, “Nonresidential Lease(s)”), must be approved by Bondowner Representative prior to execution thereof, which approval shall not be unreasonably withheld. Borrower shall comply in all respects with any restrictions or guidelines as to the rents or other fees that may be charged for such nonresidential space, if any, which are contained in the Loan Documents, the Requirements or in any other agreement by which Borrower or the Property may be bound and which has been approved by Bondowner Representative in writing. Following the occurrence and during the continuance of any Default (as defined in Section 13.1 below), Bondowner Representative may make written demand on Borrower to submit all rents under the Nonresidential Leases to Bondowner Representative. In addition, Borrower shall not amend, modify or terminate the Master Lease without Lender’s prior written consent, except in the event a General Partner is removed in accordance with the terms and conditions set forth in Section 15.41. 11.34 LANDLORD OBLIGATIONS. Borrower shall perform all obligations required to be performed by it as landlord under any lease affecting any part of the Property or Improvements. 11.35 [RESERVED]. 11.36 COVENANT FOR THE BENEFIT OF THE BONDHOLDERS. Borrower recognizes the authority of the Issuer to assign its interest in and pledge moneys receivable under this Loan Agreement to Bondowner Representative as security for the payment of the principal of and interest and redemption premiums, if any, on the Bonds, and the payme nt of all other amounts as set forth in Article 3 of this Loan Agreement (other than Sections 3.3(g) and (h), 3.4 and 3.16 to the extent payable to the Issuer). Borrower hereby (i) agrees to be bound by the Issuer’s grant of such assignment and pledge, (ii) grants to the Bondowner Representative a security interest in any right and interest Borrower may have in sums held in the Funds described in Article V of the Indenture, to secure the obligations of Borrower under this Loan Agreement and the other Loan Documents and (iii) agrees that the Bondowner Representative shall have all of the rights of a secured party under the California Uniform Commercial Code in connection with such security interest. Each of the terms and provisions of this Loan -65- DWT 30207606v4 0088288-000026 Agreement is a covenant for the use and benefit of the Bondholders and the Bondowner Representative, so long as the Bonds shall remain Outstanding; but upon payment in full of the Bonds in accordance with the Indenture and of all fees and charges requested under Sections 3.3 and 3.4 of this Loan Agreement, all references in this Loan Agreement to the Bondowner Representative, the Bonds and the Bondholders shall be ineffective, and the Bondholders and the Bondowner Representative shall thereafter have no rights hereunde r, save and except those that shall have theretofore vested or that arise from provisions hereunder which survive termination of this Loan Agreement. 11.37 INSPECTION AND ACCESS. (a) Borrower agrees that the Issuer, the Bondowner Representative and their duly author ized agents, shall have the right to examine and inspect during normal business hours, and for that purpose to enter upon, the Property, and shall also have such right of access thereto at reasonable times and under reasonable conditions and subject to the rights of tenants in possession as may be reasonably necessary to cause the Project to be properly maintained in accordance with Article 5 and in accordance with the applicable provisions of the other Loan Documents. In each instance, the Issuer, the Bon downer Representative and their duly authorized agents will give Borrower reasonable notice before entering the Project premises and make reasonable efforts to avoid interfering with Borrower’s use of the Property when exercising any of the rights granted in this Section. (b) Subject to the restrictions of all applicable laws, Borrower hereby covenants to execute, acknowledge and deliver all such further documents, and do all such other acts and things as may be necessary in order to grant to the Issuer and the Bondowner Representative the rights of access and entry described herein and agrees that such rights of access and entry shall not be terminated, curtailed or otherwise limited by any assignment, lease or other transfer of the Property by Borrower to any other person and subject to the rights of tenants in possession at reasonable times and under reasonable conditions. 11.38 INDEMNITY. (A) TO THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE ISSUER, THE BONDOWNER REPRESENTATIVE, AND EACH OF THEIR RESPECTIVE OFFICERS, GOVERNING MEMBERS, DIRECTORS, OFFICIALS, EMPLOYEES, ATTORNEYS AND AGENTS (COLLECTIVELY, THE “INDEMNIFIED PARTIES”), AGAINST ANY AND ALL LOSSES, DAMAGES, CLAIMS, ACTIONS, LIABILITIES, COSTS AND EXPENSES OF ANY CONCEIVABLE NATURE, KIND OR CHARACTER (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, LITIGATION AND COURT COSTS, AMOUNTS PAID IN SETTLEMENT AND AMOUNTS PAID TO DISCHARGE JUDGMENTS) EXCEPT ARISING OUT OF BONDOWNER REPRESENTATIVE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO WHICH THE INDEMNIFIED PARTIES, OR ANY OF THEM, MAY BECOME SUBJECT UNDER OR ANY STATUTORY LAW (INCLUDING FEDERAL OR STATE SECURITIES LAWS) OR AT COMMON LAW OR OTHERWISE, ARISING OUT OF OR BASED UPON OR IN ANY WAY RELATING TO: (I) THE BONDS, THE INDENTURE, THIS LOAN AGREEMENT OR ANY OTHER DOCUMENT TO WHICH THE ISSUER IS A PARTY, OR THE EXECUTION OR AMENDMENT HEREOF OR THEREOF OR IN CONNECTION WITH TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING THE ISSUANCE, SALE OR RESALE OF THE BONDS; (II) ANY ACT OR OMISSION OF THE BORROWER OR ANY OF ITS AGENTS, CONTRACTORS, SUBCONTRACTORS, ENGINEERS, ARCHITECTS, MATERIAL SUPPLIERS, SERVANTS, EMPLOYEES OR LICENSEES IN CONNECTION WITH THE PROJECT, THE OPERATION OF THE PROJECT, OR THE CONDITION, ENVIRONMENTAL OR OTHERWISE, OCCUPANCY, USE, POSSESSION, CONDUCT OR MANAGEMENT OF WORK DONE IN OR ABOUT, OR FROM THE -66- DWT 30207606v4 0088288-000026 PLANNING, DESIGN, ACQUISITION, INSTALLATION OR CONSTRUCTION OF, THE PROJECT OR ANY PART THEREOF; (III) ANY LIEN OR CHARGE UPON PAYMENTS BY THE BORROWER TO THE ISSUER AND THE BONDOWNER REPRESENTATIVE HEREUNDER, OR ANY TAXES (INCLUDING, WITHOUT LIMITATION, ALL AD VALOREM TAXES AND SALES TAXES), ASSESSMENTS, IMPOSITIONS AND OTHER CHARGES IMPOSED ON THE ISSUER OR THE BONDOWNER REPRESENTATIVE IN RESPECT OF ANY PORTION OF THE PROJECT; (IV) ANY VIOLATION OF ANY ENVIRONMENTAL REGULATIONS WITH RESPECT TO, OR THE RELEASE OF ANY HAZARDOUS SUBSTANCES FROM, THE PROJECT OR ANY PART THEREOF; (V) THE DEFEASANCE AND/OR REDEMPTION, IN WHOLE OR IN PART, OF THE BONDS; (VI) ANY UNTRUE STATEMENT OR MISLEADING STATEMENT OR ALLEGED UNTRUE STATEMENT OR ALLEGED MISLEADING STATEMENT OF A MATERIAL FACT CONTAINED IN ANY OFFERING STATEMENT OR DISCLOSURE OR CONTINUING DISCLOSURE DOCUMENT FOR THE BONDS OR ANY OF THE DOCUMENTS RELATING TO THE BONDS, OR ANY OMISSION OR ALLEGED OMISSION FROM ANY OFFERING STATEMENT OR DISCLOSURE OR CONTINUING DISCLOSURE DOCUMENT FOR THE BONDS OF ANY MATERIAL FACT NECESSARY TO BE STATED THEREIN IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING; (VII) ANY DECLARATION OF TAXABILITY OF INTEREST ON THE BONDS, OR ALLEGATIONS (OR REGULATORY INQUIRY) THAT INTEREST ON THE BONDS IS TAXABLE, FOR FEDERAL TAX PURPOSES; AND (VIII) THE BONDOWNER REPRESENTATIVE’S ACCEPTANCE OR ADMINISTRATION OF THE TRUST OF THE INDENTURE, OR THE EXERCISE OR PERFORMANCE OF ANY OF ITS POWERS OR DUTIES THEREUNDER OR UNDER ANY OF THE DOCUMENTS RELATING TO THE BONDS TO WHICH IT IS A PARTY; EXCEPT (A) IN THE CASE OF THE FOREGOING INDEMNIFICATION OF THE BONDOWNER REPRESENTATIVE OR ANY OF ITS RESPECTIVE OFFICERS, MEMBERS, DIRECTORS, OFFICIALS, EMPLOYEES, ATTORNEYS AND AGENTS, TO THE EXTENT SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY; OR (B) IN THE CASE OF THE FOREGOING INDEMNIFICATION OF THE ISSUER OR ANY OF ITS OFFICERS, MEMBERS, DIRECTORS, OFFICIALS, EMPLOYEES, ATTORNEYS AND AGENTS, TO THE EXTENT SUCH DAMAGES ARE CAUSED BY THE WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST ANY INDEMNIFIED PARTY WITH RESPECT TO WHICH INDEMNITY MAY BE SOUGHT HEREUNDER, THE BORROWER, UPON WRITTEN NOTICE FROM THE INDEMNIFIED PARTY, SHALL ASSUME THE INVESTIGATION AND DEFENSE THEREOF, INCLUDING THE EMPLOYMENT OF COUNSEL ACCEPTABLE TO THE INDEMNIFIED PARTY, AND SHALL ASSUME THE PAYMENT OF ALL EXPENSES RELATED THERETO, WITH FULL POWER TO LITIGATE, COMPROMISE OR SETTLE THE SAME IN ITS SOLE DISCRETION; PROVIDED THAT THE INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO REVIEW AND APPROVE OR DISAPPROVE ANY SUCH COMPROMISE OR SETTLEMENT. EACH INDEMNIFIED PARTY SHALL HAVE THE RIGHT TO EMPLOY -67- DWT 30207606v4 0088288-000026 SEPARATE COUNSEL IN ANY SUCH ACTION OR PROCEEDING AND PARTICIPATE IN THE INVESTIGATION AND DEFENSE THEREOF, AND THE BORROWER SHALL PAY THE REASONABLE FEES AND EXPENSES OF SUCH SEPARATE COUNSEL; PROVIDED, HOWEVER, THAT SUCH INDEMNIFIED PARTY MAY ONLY EMPLOY SEPARATE COUNSEL AT THE EXPENSE OF THE BORROWER IF IN THE JUDGMENT OF SUCH INDEMNIFIED PARTY A CONFLICT OF INTEREST EXISTS OR COULD ARISE BY REASON OF COMMON REPRESENTATION OR IF ALL PARTIES COMMONLY REPRESENTED DO NOT AGREE AS TO THE ACTION (OR INACTION) OF COUNSEL. (B) THE RIGHTS OF ANY PERSONS TO INDEMNITY HEREUNDER AND RIGHTS TO PAYMENT OF FEES AND REIMBURSEMENT OF EXPENSES HEREUNDER SHALL SURVIVE THE FINAL PAYMENT OR DEFEASANCE OF THE BONDS AND IN THE CASE OF THE BONDOWNER REPRESENTATIVE ANY RESIGNATION OR REMOVAL. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS LOAN AGREEMENT. (C) THE BORROWER FURTHER COVENANTS THAT NOTHING WITHIN THIS SECTION 11.38 SHALL LIMIT THE RIGHTS OF THE ISSUER, THE PROGRAM PARTICIPANTS OF THE ISSUER AND ITS RESPECTIVE OFFICERS, GOVERNING MEMBERS, DIRECTORS, OFFICIALS, EMPLOYEES, ATTORNEYS AND AGENTS TO INDEMNITY UNDER SECTION 9 OF THE REGULATORY AGREEMENT AND THAT SUCH INDEMNIFICATION SHALL SURVIVE THE TERMINATION AND DISCHARGE OF THIS LOAN AGREEMENT. 11.39 TAX STATUS OF BONDS. Borrower hereby covenants, represents and agrees as follows: (a) that Borrower will not take or permit any action to be taken that would adversely affect either the exclusion from gross income for federal income tax purposes of the interest on the B onds and, if it should take or permit any such action, Borrower will take all lawful actions to rescind such action promptly upon having knowledge thereof; and (b) that Borrower will take such action or actions, including amending the Loan and this Loan Agreement, as determined reasonably necessary in the opinion of Bond Counsel to comply fully with all applicable rules, rulings, policies, procedures, regulations or other official statements relating to the Bonds as are promulgated or proposed by the United States Department of the Treasury or the Internal Revenue Service under the Code. Borrower further covenants and agrees that it will direct all investments in compliance with the Code. Borrower covenants and agrees to cause to be calculated by an arbitrage consultant and pay to the United States any amounts owing to the United States as rebatable arbitrage in accordance with the procedures set forth in the Tax Certificate and Section 6.08 of the Indenture. 11.40 INCORPORATION OF TAX CERTIFICATE. The covenants, representations, warranties and agreements of Borrower set forth in the Tax Certificate are incorporated by reference herein as if ful ly set forth herein. 11.41 LOSS OF TAX EXCLUSION. Borrower understands that the interest rates provided under the Note and this Loan Agreement have been established on the assumption that interest paid on the Bonds will be excludable from the Bondholders’ gross income under Section 103 of the Code and applicable State law (except to the extent that any Bonds are owned by a person or entity which is a “substantial user” of the Property or a “related person” to the Borrower). In the event that (i) Borrower receives notice from Bondowner Representative that Bondowner Representative has discovered any facts or circumstances that would cause interest paid on the Bonds not to be tax-exempt; or (ii) any Bondholder receives notice from the Internal Revenue Service or o ther governmental authority that interest payable on the Bonds is not tax -exempt, or that the Internal Revenue Service is challenging the tax-exempt status of the Bonds, then the interest rate shall be increased, both prospectively and retroactively, to an annual variable rate equal to the Default Rate. Notwithstanding the foregoing, any change in the interest rate on the Bonds pursuant to this Section 11.41 applicable on and after the Conversion Date shall cause the Note to bear interest at the Default Rate. In the event of an increase in the interest rate under this Section 11.41, Borrower shall pay to the Bondholders promptly upon demand an amount sufficient to adjust previous payments of interest to the increased rate. Borrower shall also indemnify, d efend and hold Issuer and Bondowner Representative harmless from any penalties, interest expense or other costs, including reasonable attorneys’ fees (including all charges of Issuer’s and Bondowner Representative’s internal and tax counsel) and accountant s’ costs, resulting from -68- DWT 30207606v4 0088288-000026 any dispute with the Internal Revenue Service concerning the exclusion from gross income for federal income tax purposes of interest on the Bonds and the interest payable to any Bondholder on the Bonds, and upon receipt by Bondowner Representative of the amounts set forth in the foregoing indemnity, Bondowner Representative shall assign to Borrower any claims it may have against third parties for negligent acts or omissions in connection with the failure of interest on the Bonds to be excludable from gross income for federal income tax purposes. The obligations of Borrower under this paragraph shall survive termination of this Loan Agreement and repayment of the Loan. 11.42 TAXES, REGULATORY COSTS AND RESERVE PERCENTAGES. Upon Bondowner Representative’s demand, Borrower shall pay to Bondowner Representative, in addition to all other amounts which may be, or become, due and payable under this Loan Agreement and the other Loan Documents, any and all Taxes and Regulatory Costs, to the extent they are not internalized by calculation of a One Month LIBO Rate. Further, at Bondowner Representative’s option, the One Month LIBO Rate shall be automatically adjusted by adjusting the Reserve Percentage, as determined by Bondowner Representative in its prudent banking judgment, from the date of imposition (or subsequent date selected by Bondowner Representative) of any such Regulatory Costs. Bondowner Representative shall give Borrower notice of any Taxes and Regulatory Costs as soon as practicable af ter their occurrence, but Borrower shall be liable for any Taxes and Regulatory Costs regardless of whether or when notice is so given. 11.43 AMENDMENT OF REGULATORY AGREEMENT. Borrower shall not suffer or permit to become effective any restrictions (including, without limitation, any “automatic” amendment of the Regulatory Agreement pursuant to its terms) which impose requirements with respect to the occupancy, leasing or operation of the Project which are materially more burdensome than those contained as of the date of this Loan Agreement, in the Regulatory Agreement or any agreement required to be signed in connection with the TCAC Regulatory Agreement, without first obtaining the consent of Bondowner Representative to the imposition of such restriction. 11.44 TAX COVENANTS. The Borrower shall comply with the requirements and conditions of the Tax Certificate and the Regulatory Agreement. Without limiting the foregoing and notwithstanding anything to the contrary in this Loan Agreement, the Borrower will not tak e, or permit to be taken on its behalf, any action which would cause interest on the Bonds to be included in gross income for federal income tax purposes and will take such reasonable action as may be necessary to continue such exclusion from gross income, including: (a) the Borrower will not use the proceeds of the Bonds, or any other funds which may be deemed to be proceeds of the Bonds pursuant to Section 148 of the Code, in the manner which will cause the Bonds to be “arbitrage bonds” within the meaning of such section, and will comply with the requirements of such Section throughout the term of the Bonds; (b) the Borrower will prepare and file any statements required to be filed by it in order to maintain such exclusion; (c) the Borrower will pay to the United States any amount required to be paid by the Issuer or the Borrower pursuant to Section 148(f) of the Code, at the times, in the amounts and at the places required in order to maintain the exclusion of interest on the Bonds from gross income for federal income tax purposes, and Borrower shall compute, or cause to be computed, such amounts annually so long as required by the Code; (d) not less than ninety five percent (95%) of the net proceeds of the Bonds (within the meaning of Section 142(a) of the Code) shall be used to pay Qualified Project Costs; (e) [Intentionally Omitted] (f) no changes will be made to the Project, no actions will be taken by the Borrower, and the Borrower will not omit to take any actions, which will in any way adversely affect the tax exempt status of the interest on the Bonds; -69- DWT 30207606v4 0088288-000026 (g) if the Borrower becomes aware of any circumstance, event or condition which would result in the interest payable on the Bonds becoming includable in gross income for federal income tax purposes, the Borrower will promptly give written notice of such circumstance, event or condition to the Issuer and the Bondowner Representative; (h) the full amount of each disbursement from the Loan will be applied to pay or to reimburse the Borrower for the payment of Project Costs and, after taki ng into account any proposed disbursement, (i) at least ninety five percent (95%) of the net proceeds of the Bonds (as defined in Section 150 of the Code) will be used to pay Qualified Project Costs to provide a qualified residential rental project (as defined in Section 142(d) of the Code), (ii) less than twenty-five percent (25%) of the net proceeds of the Bonds will have been disbursed to pay or to reimburse the Borrower for the cost of acquiring land, (iii) not more than two percent (2%) of the proceeds of the Bonds will have been used for Issuance Costs (as defined in the Indenture), and (iv) none of the proceeds of the Bonds (as defined for purposes of Section 147(g) of the Code) will be disbursed to provide working capital; (i) the Borrower will cause all of the residential units in the Project to be rented or available for rental on a basis which satisfies applicable requirements of the Act, the Code and the Regulatory Agreement; (j) all leases for the Project will comply with all applicable laws and, as applicable for units rented to low and very-low income tenants, the Regulatory Agreement; (k) in connection with any lease or grant by the Borrower of the use of the Project, the Borrower will require that the lessee or user of any portion of the Project not use t hat portion of the Project in any manner which would violate the covenants set forth in this Loan Agreement or the Regulatory Agreement; (l) no portion of the proceeds of the portion of the Loan shall be used to provide any airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises, and no portion of the proceeds of the Loan shall be used for an office unless (i ) the office is located on the premises of the facilities constituting the Project and (ii) not more than a de minimis amount of the functions to be performed at such office is not related to the day-to-day operations of the Project; and (m) no proceeds of the Bonds will be used, for the acquisition of any tangible property or an interest therein, other than land or an interest in land, unless the first use of such property was pursuant to such acquisition; provided, however, that this limitation shall not appl y with respect to any building (and the equipment therefor) if construction expenditures (as defined in the Code) with respect to such building equal or exceed fifteen percent (15%) of the portion of the cost of acquiring such building (and equipment) financed with proceeds of the Bonds; and provided, further, that this limitation shall not apply with respect to any structure other than a building if construction expenditures with respect to such structure equal or exceed one hundred percent (100%) of the portion of the cost of acquiring such structure financed with the proceeds of the Bonds. In any matter relating to the exclusion of interest on the Bonds from gross income for federal income tax purposes, the terms and provisions of the Tax Certificate shall control in the event of any conflict between this Loan Agreement and the Tax Certificate. 11.45 DEBT SERVICE COVERAGE RATIO. (a) Borrower anticipates that, for all fiscal years of the Borrower during the Permanent Loan Term (each, a “Period”), the ratio of Net Income for the Property to Debt Service shall be and remain no less than ///[1.05]/// to 1.00 (“Target DSCR”). Borrower acknowledges that Bondowner Representative is relying on the Borrower meeting the Target DSCR in making the Loan, and that Bondowner Repre sentative would not have made the Loan without its reliance upon such anticipated Target DSCR. Notwithstanding -70- DWT 30207606v4 0088288-000026 anything set forth herein, the failure of the Borrower to maintain the Target DSCR shall not constitute a Default under this Loan Agreement. (b) In addition to the delivery to Bondowner Representative of the financial information required to be provided under Section 12.1 below, Borrower shall submit annually to Bondowner Representative, within 120 days of the end of each of Borrower’s fiscal years dur ing the Permanent Loan Term, a certification by the Borrower of the DSCR for each such fiscal year (the “DSCR Fiscal Certification”); provided, however, that if Borrower’s first fiscal year of the Permanent Loan Term ends less than one full year after the Conversion Date, the DSCR Fiscal Certification shall reflect the DSCR for the period only from the Conversion Date to the end of such first fiscal year. Borrower shall make available to Bondowner Representative or its designee any financial information re asonably requested by Bondowner Representative in order for Bondowner Representative to verify and accept Borrower’s DSCR calculations. If Bondowner Representative does not accept Borrower’s DSCR Fiscal Certification, CCRC shall provide Borrower its recalculation which shall be binding upon Borrower. If Borrower fails to deliver to Bondowner Representative (i) the DSCR Fiscal Certification as required by this Section, or (ii) the financial information required pursuant to Article 12 below, Bondowner Repre sentative shall calculate the DSCR (the “Bondowner Representative DSCR Determination”) based upon the most recently available financial information of Borrower, which Bondowner Representative DSCR Determination shall be binding upon Borrower. If any DSCR Fiscal Certification or Bondowner Representative DSCR Determination reveals that the DSCR for any Period covered by such DSCR Fiscal Certification is less than the Target DSCR, then, while not an Event of Default, Bondowner Representative shall notify Limi ted Partner (as defined below) and any Subordinate Lender of such fact, and the following shall occur: (i) Borrower shall provide Bondowner Representative, within thirty (30) days of Borrower’s delivery of the relevant DSCR Fiscal Certification or Bondowner Representative’s calculation of the DSCR, as applicable, a written plan reasonably acceptable to Bondowner Representative to bring the Property into compliance with the Target DSCR. Such plan shall include monthly projections of Net Income, Debt Service and DSCR until such time as projections show the Property to be in compliance with the Target DSCR; (ii) Borrower shall provide Bondowner Representative, for each month of the year following submittal of the relevant DSCR Fiscal Certification or Bondowner Representative’s calculation of the DSCR, as applicable (within 25 days of the end of each month): (x) a certificate disclosing the DSCR for the 12-month period ending in the relevant month (a “Monthly DSCR Certification”), and (y) rent rolls and operating statements for the Property, along with a monthly comparison of actual Net Income, Debt Service and DSCR to projected Net Income, Debt Service and DSCR reflected in the written plan described above. Borrower shall also provide a narrative explaining in detail any material variations between actual and projected Net Income, Debt Service and DSCR. If Borrower fails to deliver to Bondowner Representative the Monthly DSCR Certification as provided herein, or if Bondowner Representative’s internal DSCR calculation is inconsistent with Borrower’s Monthly DSCR Certification, Bondowner Representative shall calculate the monthly DSCR based upon the most recently available financial information of Borrower, and such calculation shall be binding upon Borrower; (iii) Until such time as the Property is in actual compliance with the Target DSCR, Borrower shall not make partnership payments or distributions; but rather, Borrower shall deposit the amount of any such payments otherwise due (and any other excess of Net Income over Debt Service) with Bondowner Representative, to be held as additional collateral by Bondowner Representative in Borrower’s name as a debt service reserve (the “Debt Service Reserve”). Such deposits by Borrower shall continue until the earlier of (x) the time at which the balance in the Debt Service Reserve shall be sufficient, if applied to the Loan, to bring the Property in compliance with the Target DSCR (assuming the Loan payments are -71- DWT 30207606v4 0088288-000026 recast based on the deemed application of such Debt Service Reserve to the then-current Loan balance and interest rate and its remaining amortization period and utilizing the Net Income from the latest available audited financial statements), or (y) the time at which a subsequent Monthly DSCR Certification shall reveal that the Property is in actual compliance with the Target DSCR. Monies deposited in the Debt Service Reserve, if invested, shall be invested only in obligations on which interest is excludable from gross income for federal income tax purposes. (iv) Upon the actual compliance of the Property with the Target DSCR, as determined by a certification of the Borrower of such event and verified by Bondowner Representative or its designee (not merely upon reduction of the Loan by the amount retained in any Debt Service Reserve being maintained because of the failure to meet the Target DSCR), Bondowner Representative shall release the balance of funds in the Debt Service Reserve retained pursuant to this Section 11.45(b) to Borrower, and Borrower’s obligations u nder any written plan shall terminate. As additional security for all of Borrower’s obligations under the Loan Documents, Borrower hereby pledges to Bondowner Representative and Issuer, and grants to Bondowner Representative and Issuer a security interest in, the Debt Service Reserve, all amounts now or hereafter on deposit in the Debt Service Reserve, all interest and other earnings on the Debt Service Reserve, if any, all additions, increases, modifications, renewals, rollovers, substitutions and replacements to and/or for the foregoing collateral, and all proceeds and products of the foregoing collateral, whether voluntary or involuntary. (c) To the extent Borrower does not comply with any term or condition of subsection (b) above, then, before any Default shall occur pursuant to Section 13.1 below, Borrower’s limited partner(s) (collectively, “Limited Partner”) shall receive written notice of Borrower’s failure to comply and Limited Partner shall have the right, but not the obligation, within thirty (30) days of receipt of written notice of Borrower’s failure to comply, to cure any such failure to comply. Bondowner Representative agrees to accept any such cure tendered by Limited Partner on behalf of Borrower. 11.46 OPERATING EXPENSES. After the occurrence of a Default, but for the lapse of any applicable grace period, and notwithstanding such Default shall be or have been cured or waived by Bondowner Representative, Bondowner Representative shall have the right to require Borrower to deposit with Bondowner Representative, in monthly installments in advance on the first day of each month, an amount sufficient, as reasonably estimated by Bondowner Representative, to pay all Operating Expenses for the Property. In such event, Borrower further agrees, upon Bondowner Representative’s request, to cause all bills, statements or other documents relating to the operating expenses to be sent or mailed directly to Bondowner Representative. Upon receipt of such bills, statements or other documents, and provided Borrower has deposited sufficient funds with Bondowner Representative pursuant to this Section 11.46, Bondowner Representative shall pay such amounts as may be due thereunder out of the funds so deposited with Bondowner Representative. If at any time and for any reason the funds deposited with Bondowner Representative are or will be insufficient to pay such Operating Expenses as may then or subsequently be due, Bondowner Representative may notify Borrower and Borrower shall immediately deposit an amount equal to the deficiency with Bondowner Representative. If at any time the funds deposited with Bondowner Representative exceed the amount deemed necessary by Bondowner Representative to pay such operating expenses as may then or subsequently be due, such excess shall be c redited to Borrower on the next monthly installment or installments of such funds. Upon payment and performance in full of the Loan and all indebtedness and obligations under the Loan Documents, Bondowner Representative shall promptly refund to Borrower any such funds held by Bondowner Representative. Nothing herein shall cause Bondowner Representative to be deemed a trustee of such funds or to be obligated to pay any amounts in excess of the amount of funds deposited with Bondowner Representative pursuant to this Section 11.46. Bondowner Representative may commingle such deposits with its own funds and Borrower shall not be entitled to any interest thereon. Borrower shall execute whatever security agreements, financing statements and other documents and instruments as Bondowner Representative may require in order to confirm Bondowner Representative’s security interest in and/or -72- DWT 30207606v4 0088288-000026 control over such accounts (including, without limitation, the Replacement Reserve referred to in the Replacement Reserve Agreement, and funds deposited therein). 11.47 OPERATING RESERVES. At Conversion, Borrower shall have set aside and shall maintain a specific operating reserve fund with respect to the Property in an amount not less than __________________ and No/100th Dollars ($___________) (the “Operating Reserve”), which shall be additional collateral for the Loan during the entire term of the Loan, as follows: (a) The Operating Reserve shall be maintained by CCRC in one or more account(s) in Borrower’s name with Wells Fargo Bank, National Association; provided, however, that if the Investor Limited Partner sells or transfers its limited partnership interest in Borrower prior to the end of the fifteen (15)-year compliance period, then Borrower shall transfer any Operating Reserve then re maining to an account held and controlled by CCRC. The Operating Reserve funds and the account in which such funds are held shall be additional security in favor of CCRC for the Loan. Such account(s) shall provide expressly that Borrower shall make no withdrawals therefrom without the prior written consent of CCRC. (b) Borrower shall be entitled to disbursements of the Operating Reserve funds in order to meet operating deficits in connection with the management and/or maintenance of the Property. If Borrower shall at any time receive a disbursement of the Operating Reserve funds to pay such operating deficits, Borrower shall promptly replenish the Operating Reserve from available cash flow from the Property, and the replenishment of the Operating Reserve shal l be paid prior to the payment of any partnership or developer fees. (c) All of Borrower's interest in the Operating Reserve, any interest accrued or accruing thereon, and the account(s) in which those funds are held, are hereby pledged to Bondowner Representative as collateral or security for the Loan pursuant to this Loan Agreement and the Deed of Trust. If a Default shall occur and be continuing, Bondowner Representative shall be entitled to draw upon and utilize all or any portion of the Operating Reserve as otherwise provided in the Loan Documents. (d) Initially, the Operating Reserve shall be audited by Bondowner Representative or its delegee, six (6) months following the Conversion Date, and the Operating Reserve shall be audited by Bondowner Representative or its delegee annually thereafter to confirm, among other things, that (i) Borrower has used Operating Reserve funds only for appropriate purposes, and (ii) the Operating Reserve, as funded, is in compliance with this Section 11.47. Borrower shall cooper ate with Bondowner Representative’s audits of the Operating Reserve. (e) In the event that operating reserves required under the Partnership Agreement or in connection with any Subordinate Loan are in an amount greater than the Operating Reserve amount required hereunder, Borrower shall be required to deposit such greater amount directly with Bondowner Representative. (f) To the extent that any Partnership Document or Subordinate Loan Document requires the prior consent of Investor Limited Partner or any Subordinat e Lender, respectively, to any withdrawal from the Operating Reserve, Borrower shall obtain Investor Limited Partner’s and/or such Subordinate Lender’s consent thereto and shall have delivered evidence of such consent to Bondowner Representative concurrently with its request for disbursements from the Operating Reserve. (g) Upon payment in full of all principal and interest under the Loan and the full performance of all other obligations secured by the Deed of Trust and the discharge of the Deed of Trust by Bondowner Representative, Bondowner Representative shall release to Borrower all funds deposited in the Operating Reserve. 11.48 SUBORDINATE LOANS. Borrower shall timely perform all obligations of Borrower with respect to the Subordinate Loans under any documents executed in connection with the Subordinate Loans. Borrower shall deliver to Bondowner Representative copies, certified by Borrower to be true and correct, of the documents that evidence and secure the Subordinate Loans, the form and content of which sha ll be subject to Bondowner Representative’s reasonable approval. Borrower shall at all times fully and timely comply and cause the Property and Improvements to comply with all applicable terms and conditions of the documents that evidence and -73- DWT 30207606v4 0088288-000026 secure the Subordinate Loans and shall provide Bondowner Representative with such verification of that compliance from time to time as reasonably requested by Bondowner Representative. Borrower shall not (a) commit any breach or default under any Subordinate Loan; (b ) fail to maintain the Subordinate Loans in full force and effect until all sums owing to each Subordinate Lender with respect to such Subordinate Loans have been paid; or (c) consent to any termination, amendment or modification of the terms of any Subord inate Loan without Bondowner Representative’s prior written consent. Borrower shall fully draw down the full amount of each Subordinate Loan in accordance with the terms and conditions of the respective Subordinate Loan Documents and to the extent that an y excess Subordinate Loan funds drawn by Borrower are not applied to the construction of the Project, Borrower shall deposit such excess Subordinate Loan funds in the Borrower’s Funds Account. 11.49 AMERICANS WITH DISABILITIES ACT COMPLIANCE. Borrower shall be in full compliance with all federal and state laws, including those of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 12101 et seq. and its implementing regulations. Under the ADA, Borrower shall provide for reasonable accommodations to allow qualified individuals with disabilities access to and participation in their programs, services and activities. In addition, Borrower shall not discriminate against individuals with disabilities nor against persons due to their relationship or association with a person with a disability. Any subcontract entered into by Borrower relating to this Loan Agreement, to the extent allowed hereunder, shall be subject to the provisions of this Section. Borrower shall be responsible for all ADA compliance costs. 11.50 KEEPING GUARANTOR AND INVESTOR LIMITED PARTNER INFORMED. Borrower must keep Guarantor and Investor Limited Partner informed of Borrower’s financial condition and business operations, the condition and all uses of the Property, including all changes in conditi on or use, and any and all other circumstances that might affect Borrower’s ability to pay or perform its obligations under this Loan Agreement. 11.51 STATUS OF BORROWER. (a) Throughout the term of this Loan Agreement, Borrower will maintain its existence as a limited partnership under the laws of the State of California in good standing and qualified to transact business in the State and will not wind up or otherwise dispose of all or substantially all of its assets. (b) Notwithstanding the provisions of the Deed of Trust, Borrower shall not effect a merger, consolidation or transfer if the result thereof would cause the interest on the Bonds (in the hands of any person who is not a “substantial user” of the Project or a “related person”) to become includable in gross income for federal income tax purposes. (c) Upon any change in the status of Borrower, by way of substitution, sale or otherwise of Borrower, the Issuer and the Bondowner Representative shall be promptly informed and, if requested, Borrower as newly constituted shall deliver to the Issuer and the Bondowner Representative an instrument in form satisfactory to each of them affirming the liability of Borrower hereunder. 11.52 FILING OF FINANCING STATEMENTS. Borrower agrees that it will cooperate with Bondowner Representative in Bondowner Representative’s filing or causing to be filed, at Borrower’s sole expense, on or before January 1 of each fifth calendar year in which the Loan remains outstanding, commencing ///[December 1, 2021]///, any financing statements or continuation statements required or requested by Bondowner Representative to perfect and preserve the security interest of the Issuer and the Bondowner Representative in this Loan Agreement and the payments to be made hereunder, as granted in the Indenture. 11.53 NEGATIVE COVENANTS. Without Bondowner Representative’s prior written consent, Borrower may not: (a) engage in any business activities substantially different from Borrower’s present business; (b) liquidate or dissolve Borrower’s business; -74- DWT 30207606v4 0088288-000026 (c) lease (other than pursuant to residential leases to tenants of the Project permitted pursuant to the Loan Documents) or dispose of all or a substantial part of Borrower’s business or Borrower’s assets; (d) enter into any consolidation, merger, pool, joint venture, syndicate or other combination, except as otherwise permitted by Section 5.12 of the Deed of Trust or by this Loan Agreement. 11.54 SWAP AGREEMENTS. If Borrower enters into any Swap Agreement with Bondowner Representative, Borrower shall, upon receipt from Bondowner Representative, execute promptly all documents evidencing such transaction. 11.55 DERIVATIVE DOCUMENTS. If Borrower purchases from Bondowner Representative any swap, derivative, foreign exchange or hedge transaction or arrangement (or other similar transaction or arrangement howsoever described or defined) in connection with the Loan, Borrower shall, upon receipt from Bondowner Representative, execute promptly all documents evidencing such transaction, including without limitation, the ISDA Master Agreement, the Schedule to the ISDA Master Agreement and the ISDA Confirmation. 11.56 NOTICES FROM TCAC. Borrower shall immediately deliver to Bondowner Representative a full copy of any notices or reports Borrower receives from TCAC and any notices or reports Borrower provided to TCAC in connection with the LIHTC. 11.57 SANCTIONS. No Person within the Borrowing Group shall: (a) use any of the Loan proceeds for the purpose of: (i) providing financing to or otherwise making funds directly or indirectly available to any Sanctioned Person; or (ii) providing financing to or otherwise funding any transaction which would be prohibited by Sanctions or would otherwise cause Bondowner Representative or Borrower, or any entity affiliated with Bondowner Representative or Borrower, to be in breach of any Sanction; or (b) fund any repayment of the Loan with proceeds derived from any transaction that would be prohibited by Sanctions or would otherwise cause Bondowner Representative or Borrower, or any entity affiliated with Bondowner Representative or Borrower, to be in breach of any Sanction. Borrower shall notify Bondowner Representative in writing not more than one (1) Business Day after becoming aware of any breach of this Section. 11.58 HUD DOCUMENTS. Borrower shall timely perform all obligations of Borrowe r with respect to the HUD Documents. Borrower shall deliver to Bondowner Representative copies, certified by Borrower to be true and correct, of the HUD Documents, the form and content of which shall be subject to Bondowner Representative’s approval. Borrower shall at all times fully and timely comply and cause the Property and Improvements to comply with all applicable terms and conditions of the HUD Documents and shall provide Bondowner Representative with such verification of that compliance from time to time as reasonably requested by Bondowner Representative. Borrower shall not (a) commit any breach or default under any HUD Document; (b) fail to maintain the HUD Documents in full force and effect; or (c) consent to any termination, amendment or modification of the terms of any HUD Documents without Bondowner Representative’s prior written consent. ARTICLE 12. . REPORTING COVENANTS 12.1 FINANCIAL INFORMATION. Borrower shall keep true and correct financial books and records for the Property, using generally accepted accounting principles consistently applied, unless otherwise noted. Within one hundred twenty (120) days after the end of each of Borrower’s, Guarantor’s and General Partner’s fiscal years, Borrower shall deliver to Bondowner Representative an audited balance sheet and income statement for Borrower, Guarantor and General Partner, together with a statement showing all changes in Borrower’s, Guarantor’s and General Partner’s financial condition together with an annual certification by Borrower of compliance with all applicable provisions of the Regulatory Agreement and Section 42 of the Code. Borrower shall also promptly deliver to Bondowner Representative, upon Bondowner Representative’s request, its monthly and/or quarterly balance sheets and income statements. If Bondowner Representative so requests, at Bondowner Representative’s reasonable discretion, Borrower shall promptly provide quarterly balance sheets and income statements for General Partner or Guarantor. In addition, if Bondowner Representative so requests as shall be necessary for Bondowner Representative to comply with current federal law, at Bondowner Representative’s reasonable discretion, Borrower shall also promptly provide annual balance sheets and income statements for the Borrower’s limited partner. Borrower shall promptly provide Bondowner Representative with any additional -75- DWT 30207606v4 0088288-000026 financial information that Borrower may obtain, or Bondowner Representative may reasonably request, on itself, Guarantor or General Partner, including but not limite d to, signed copies of any tax returns and such other information concerning the Borrower’s, Guarantor’s or General Partner’s affairs and properties as Bondowner Representative may reasonably request. Notwithstanding the foregoing, the provisions regardin g Guarantor hereunder shall be applicable only prior to the Conversion Date. 12.2 BOOKS AND RECORDS. Borrower shall maintain complete books of account and other records for the Property and Improvements and for disbursement and use of the proceeds of the Loan and Borrower’s Funds, and the same shall be available for inspection and copying by Bondowner Representative upon reasonable prior notice. 12.3 REPORTS. Within ten (10) days of Bondowner Representative’s request, Borrower shall deliver to Bondowner Representative monthly inventory reports, marketing and sales schedules and reports, marketing and sales information and/or leasing information, with respect to all real property projects of Borrower and all general partners, venturers and members of Borrower, all in form and substance acceptable to Bondowner Representative. 12.4 LEASING REPORTS. Borrower shall deliver to Bondowner Representative monthly rent rolls, leasing schedules and reports, operating statements and/or such other leasing information as Bondowner Representative shall request with respect to the Property and Improvements, each in form and substance satisfactory to Bondowner Representative and certified by an authorized officer of Borrower to be true and correct. In addition, Borrower shall promptly obtain and deliver to Bondowner Representative such estoppel certificates and subordination and attornment agreements executed by such tenants in such forms as Bondowner Representative may from time to time require. 12.5 OPERATING STATEMENTS FOR PROPERTY AND IM PROVEMENTS. Beginning with the first calendar month following the date of completion of construction of the Project and continuing until the Conversion Date, Borrower shall deliver to Bondowner Representative on the fifteenth (15th) day of each month an “Operating Statement” which shows in detail the amounts and sources of Gross Operating Income received by or on behalf of Borrower and the amounts and purposes of Permitted Operating Expenses paid by or on behalf of Borrower with respect to the Property and Improvements for the previous month. “Gross Operating Income” for this purpose shall mean the sum of any and all amounts, payments, fees, rentals, additional rentals, expense reimbursements (including, without limitation, all reimbursements by tenants, lessees, licensees and other users of the Property and Improvements) discounts or credits to Borrower, income, interest and other monies directly or indirectly received by or on behalf of or credited to Borrower from any person with respect to Borrower’s ow nership, use, development, operation, leasing, franchising, marketing or licensing of the Property and Improvements. Gross Operating Income shall be computed on a cash basis and shall include for each quarterly statement all amounts actually received in such quarter whether or not such amounts are attributable to a charge arising in such quarter. “Permitted Operating Expenses” shall mean the following expenses to the extent that such expenses are reasonable in amount and customary for properties of this type: (i) taxes and assessments imposed upon the Property and Improvements to the extent that such taxes and assessments are required to be paid by Borrower and are actually paid or reserved for by Borrower; (ii) bond assessments; (iii) insurance premiums for casualty insurance (including, without limitation, earthquake) and liability insurance carried in connection with the Property and Improvements, provided, however, if any, insurance is maintained as part of a blanket policy covering the Property and Improvements and other properties, the insurance premium included in this subparagraph shall be the premium fairly allocable to the Property and Improvements; (iv) operating expenses incurred by Borrower for the management, operation, cleaning, leasing, maintenance and repair (including legal and accounting expenses) of the Property and Improvements. Permitted Operating Expenses shall not include any interest or principal payments on the Loan or any allowance for depreciation. 12.6 ADDITIONAL FINANCIAL INFORMATION. Borrower shall promptly provide Bondowner Representative with any additional financial information that Borrower may obtain, or Bondowner Representative may reasonably request, regarding Borrower and/or the General Partner, including but not limited to , signed copies -76- DWT 30207606v4 0088288-000026 of any tax returns and such other information concerning the Borrower’s or the General Partner’s affairs and properties as Bondowner Representative may reasonably request. If Borrower or General Partner thereof fails to comply with the obligations of this Section 12.6 within sixty (60) days of Bondowner Representative’s written request for financial statements (excluding audited financial statements) or other information related to Borrower, such General Partner, the Property or the Loan within the specified time periods set forth herein or in any other provision requiring such delivery (subject to any applicable notice and cure periods set forth herein), then Borrower or General Partner shall pay to Bondowner Representative, as damages, the sum of $100 per day (plus interest thereon at the Default Rate as specified in the Note) until Borrower or its General Partner has complied therewith or such information is otherwise received by Bondowner Representative. _________ BORROWER’S INITIALS 12.7 NOTICE FROM INVESTOR LIMITED PARTNER. Borrower shall immediately deliver to Bondowner Representative a full copy of any notice from Investor Limited Partner pursuant to which Investor Limited Partner may refuse to fund any portion of the Capital Contribution s or demand a return of any Capital Contributions. ARTICLE 13. DEFAULTS AND REMEDIES 13.1 DEFAULT. The occurrence of any one or more of the following shall constitute an event of default (“Default”) under this Loan Agreement and the other Loan Documents: (a) Monetary. (i) Borrower's failure to pay any sums payable under the Note or any of the other Loan Documents (other than sums due and payable on the Maturity Date), or Borrower’s failure to deposit any Borrower’s Funds, within five (5) days following the due date, or (ii) Borrower’s failure to pay when due, all sums due and owing to Bondowner Representative under the Note or any other Loan Documents on the Maturity Date; or (b) Performance of Obligations. Borrower’s failure to perform, keep or observe any term, provision, condition, covenant, or agreement contained in this Loan Agreement (other than obligations in other subparagraphs of this Section 13.1), any other Loan Document, or any other present or future agreement between Borrower and Bondowner Representative and/or evid encing and/or securing the Loan within thirty (30) days after written notice to Borrower from Bondowner Representative requesting that Borrower cure such failures; provided, however, that if a different cure period is expressly provided for the remedy of such failure, Borrower’s failure to perform will not constitute a Default until such date as the specified cure period expires; or (c) Construction; Use. (i) There is any material deviation in the work of construction from the Plans and Specifications or governmental requirements, without Bondowner Representative approval, or the appearance or use of defective workmanship or materials in constructing the Improvements, and Borrower fails to remedy the same to Bondowner Representative’s satisfaction within ten (10) days of Bondowner Representative’s written demand to do so; or (ii) there is a cessation of construction of the Improvements prior to completion for a continuous period of more than fifteen (15) days (except as caused by an event of force majeure for which a longer delay may be permitted under Article 4); or (iii) the construction, sale or leasing of any of the Improvements in accordance with the Loan Documents is prohibited, enjoined or delayed for a continuous period of more than thirty (30) days; or (iv) utilities or other public services necessary for the full occupancy and utilization of the Property and Improvements are curtailed for a continuous period of more than thirty (30) days (except as caused by an event of force majeure for which a longer delay may be permitted under Article 4); or (d) Liens, Attachment; Condemnation. (i) The recording of any claim of lien against the Property or Improvements or the service on Bondowner Representative of any bonded stop notice relating to the Loan and the continuance of such claim of lien or bonded stop notice for thirty (30) days without -77- DWT 30207606v4 0088288-000026 discharge, satisfaction or provision for payment being made by Borrower in a manner satisfactory to Bondowner Representative; or (ii) the condemnation, seizure or appropriation of, or occurrence of an uninsured casualty with respect to any material portion of the Property or Improvements; or (iii) the sequestration or attachment of, or any levy or execution upon any of the Property or Improvements, any other collateral provided by Borrower under any of the Loan Documents, any monies in the Account or in the Borrower’s Funds Account, or any substantial portion of the other assets of Borrower, which sequestration, attachment, levy or execution is not released, expunged or dismissed prior to the earlier of thirty (30) days or the sale of the assets affected thereby; or (e) Representations and Warranties. (i) The failure of any representation or warranty of Borrower, any of its members or any of the General Partners, or any of its office rs, employees or agents on behalf of Borrower in any of the Loan Documents and the continuation of such failure for more than fifteen (15) days after written notice to Borrower from Bondowner Representative requesting that Borrower cure such failure; or (ii) any material adverse change in the financial condition of Borrower, any of its members, any of the Guarantors (prior to Conversion), or any Indemnitor from the financial condition represented to Bondowner Representative as of the later of: (A) the Effective Date; or (B) the date upon which the financial condition of such party was first represented to Bondowner Representative; or (f) Voluntary Bankruptcy; Insolvency. (i) The filing of a petition by Borrower for relief under the Bankruptcy Code, or under any other present or future state or federal law regarding bankruptcy, reorganization or other debtor relief law; (ii) the filing of any pleading or an answer by Borrower in any involuntary proceeding under the Bankruptcy Code or other debtor relief law whic h admits the jurisdiction of the court or the petition’s material allegations regarding Borrower’s insolvency; (iii) a general assignment by Borrower for the benefit of creditors; or (iv) Borrower applying for, or the appointment of, a receiver, trustee, custodian or liquidator of Borrower or any of its property; or (g) Involuntary Bankruptcy. The failure of Borrower to effect a full dismissal of any involuntary petition under the Bankruptcy Code or under any other debtor relief law that is filed against Borrower or in any way restrains or limits Borrower or Bondowner Representative regarding the Loan, the Property or the Improvements, prior to the earlier of the entry of any court order granting relief sought in such involuntary petition, or sixty (60) days after the date of filing of such involuntary petition; or (h) Partners; Guarantor. Prior to Conversion, the occurrence of any of the events specified in Section 13.1(f) or 13.1(g) as to any person or entity other than Borrower, including, without limitation, General Partner, Guarantor or Indemnitor, which is in any manner obligated to Bondowner Representative under the Loan Documents; or (i) Other Bankruptcy. The occurrence of any of the events specified in Sections 13.1(f) or 13.1(g) of this Loan Agreement with respect to Contractor (unless Contractor is replaced by a contractor reasonably satisfactory to Bondowner Representative within ninety (90) days of such occurrence, except that such period shall be limited to thirty (30) days if such proceedings have a mater ially adverse impact upon the progress of construction of the improvements or the availability of the LIHTC; or (j) Dissolution. The dissolution of Borrower, any Guarantor (prior to Conversion) or any Indemnitor; or (k) Change In Management or Control. Except as otherwise permitted under the Loan Documents, the occurrence of any material management or organizational change in Borrower or in the partners of Borrower, including, without limitation, any partnership dispute which Bondowner Representative determines, in its sole and absolute discretion, shall have a material adverse effect on the Loan, on the Property and Improvements, or on the ability of Borrower or its partners to perform their obligations under the Loan Documents; or (l) Loss of Priority. With the exception of the Regulatory Agreement and other Permitted Prior Encumbrances, the failure at any time of the Deed of Trust to be a valid first lien upon the Property and Improvements or any portion thereof, other than as a result of any release or reconveyanc e of the Deed -78- DWT 30207606v4 0088288-000026 of Trust with respect to all or any portion of the Property and Improvements pursuant to the terms and conditions of this Loan Agreement; or (m) Hazardous Materials. Except as disclosed in the Environmental Reports, the discovery of any significant Hazardous Materials in, on or about the Property or Improvements subsequent to the Effective Date, which Borrower fails to remove within thirty (30) days of discover y. Any such Hazardous Materials shall be “significant” for this purpose if said Hazard ous Materials, in Bondowner Representative’s sole discretion, have a materially adverse impact on the value of the Property and Improvements; or (n) Investor Limited Partner Financing. The failure to comply with Sections 8.2(u), 11.4 and 12.7 of this Loan Agreement or, prior to Conversion, the failure of Investor Limited Partner to make the Capital Contributions to Borrower in the amounts and prior to the required dates set forth in Section 1.1, above, or the occurrence of a material breach or default under the Partnership Documents, or failure to satisfy any of the material terms, covenants or conditions of or under the Partnership Documents, which has the effect of causing or excusing the failure of partners in Borrower to make capital contributions in the amounts and at the times required under Section 8.2(u), as such failure continues for more than thirty (30) days after notice of such failure from Bondowner Representative to Borrower; or (o) Withdrawal of General Partner. Except as otherwise expressly permitted under the terms of this Loan Agreement, the withdrawal of a General Partner as a general partner of Borrower, and Borrower’s failure to provide a substitute or replacement acceptable to Bondowner Representative and Investor Limited Partner within thirty (30) days after the occurrence of any such withdrawal; or (p) Tax Certificate. Failure by Borrower or Issuer to perform their obligations under the Tax Certificate, or failure of any of the representations or warranties contained in the Tax Certificate to be and remain true and correct at any time; or (q) Tax Credits. Failure to remain in compliance with TCAC requirements or to promptly reapply for the LIHTCs upon Bondowner Representative’s request, or the expiration of the LIHTCs; or (r) Investor Limited Partner Bankruptcy. Prior to the funding of the Capital Contributions in an amount sufficient to comply with Section 8.2(u) of this Loan Agreement, the occurrence of any of the events specified in Sections 13.1(f) or 13.1(g) of this Loan Agreement with respect to th e Investor Limited Partner; or (s) Adverse Financial Condition - Other Than Borrower. Any material adverse change in the financial condition of any Guarantor prior to Conversion or Indemnitors from the condition shown on the financial statement(s) submitted to Bondowner Representative and relied upon by Bondowner Representative in making the Loan, the materiality and adverse effect of such change in financial condition to be reasonably determined by Bondowner Representative in accordance with its credit standa rds and underwriting practices in effect at the time of making such determination; or (t) Conversion. Failure of Conversion to occur and CCRC to purchase the Bonds on or before the Mandatory Conversion Date; or, as it may be extended subject to satisfaction o f all conditions precedent as provided in Section 3.6 or Section 3.7, as applicable; or (u) Swap Contract. The occurrence of a default by Borrower or a termination event with respect to Borrower under any swap, derivative, foreign exchange or hedge transactio n or arrangement (or similar transaction or arrangement howsoever described or defined) at any time entered into between Borrower and Bondowner Representative in connection with the Loan; or (v) Transfer of Assets. The sale, assignment, pledge, hypothecation, mortgage or transfer of all or a substantial portion of assets of Borrower, any of the Guarantor (until Conversion) or any Indemnitor, other than in the ordinary course of business of said entity or as otherwise permitted under the -79- DWT 30207606v4 0088288-000026 Loan Documents; or Borrower ceases its operations or sells or otherwise disposes of all or substantially all of the Property (except as otherwise permitted under the Loan Documents) or a governmental authority condemns or expropriates, or an order is issued by a governmental aut hority for the condemnation or expropriation of all or substantially all of the Property; or (w) Unsecured Indemnity Agreement. The occurrence of a default and the expiration of any applicable cure periods under that certain Hazardous Materials Indemnity Agre ement (Unsecured - Borrower) or that certain Hazardous Materials Indemnity Agreement (Unsecured - Guarantor) executed by an Indemnitor, in favor of Bondowner Representative, and dated of even date herewith; or (x) Attachment or Levy. All or any of Borrower’s or the General Partner’s assets in excess of Fifty Thousand Dollars ($50,000.00) in aggregate value are attached, seized, subjected to a writ or distress warrant, or are levied upon, or come into the possession of any judicial officer or assignee for the benefit of creditors unless, with respect to any such assets, such attachment, seizure, writ, warrant or levy shall be dismissed, released or stayed within ten (10) days of issuance thereof; or (y) Governmental Lien. A notice of lien, levy or assessment in excess of Fifty Thousand Dollars ($50,000.00) in the aggregate, is filed of record with respect to any or all of Borrower’s or the General Partner’s assets by the United States Government, or any department, agency or instrumentality thereof, or by any other public authority, or if any taxes or debts owing at any time hereafter to any one or more of such entities in excess of Fifty Thousand Dollars ($50,000.00) in the aggregate, becomes a lien, whether choate, inchoate or otherwise, upon any or all of Borrower ’s or the General Partner’s assets, and the same is not paid or otherwise released within forty-five (45) days of the filing thereof; or (z) Criminal Proceedings. Any criminal proceedings against Borrower or the General Partner shall have been instituted or B orrower or the General Partner shall be indicted for any crime, in either case for which a forfeiture of a material amount of the Property or any of its other property or assets is a potential penalty and such proceedings or indictment is not dismissed wit hin sixty (60) days; or (aa) Default Under Subordinate Loans, HUD Documents and Other Agreements. (i) The occurrence of any default that remains uncured beyond any applicable notice and cure periods by Borrower or any other party under any Subordinate Loan Document, any HUD Document, the AHAP Contract, any HAP Contract or any other material agreement entered into by Borrower in connection with the Project, (ii) the termination of the RAD HAP Contract, the AHAP Contract or any HAP Contract , (iii) the housing assistance payments under the RAD HAP Contract or any HAP Contract are reduced for any reason, or (iv) the failure of HUD or Contract Administrator to provide all or any portion of the Section 8 subsidy payments under the RAD HAP Contract or the HAP Contract, once executed, due to any non-appropriation of government funding for such Section 8 subsidy payments. ; or (bb) Bond Purchase Agreement. The occurrence of any material default that remains uncured beyond all applicable notice and cure periods under the Bond Purchase Agreement; or (cc) Restrictions. The occurrence of any default by Borrower under any Restrictions that remains uncured beyond all applicable notice and cure periods provided for therein; or (dd) Default Under Guaranty. The occurrence of a default under an y guaranty now or hereafter executed in connection with the Loan, including without limitation, any guarantor’s failure to perform any covenant, condition or obligation thereunder; or (ee) Default Under Partnership Agreement. Any default by General Partner or Investor Limited Partner under the Partnership Agreement or under any agreement or instrument relating to or executed in connection with the Partnership Agreement that is not cured within the cure period set forth in such agreement or instrument; or -80- DWT 30207606v4 0088288-000026 (ff) Default Under Swap Agreement. Any “Default” or “Event of Default” occurs under any Swap Agreement (as defined therein) between Borrower and Bondowner Representative; or (gg) Leases. A material default by Borrower occurs under any tenant lease for any part of the Property or under the Master Lease and such default remains uncured beyond the cure period provided for in such lease; or (hh) Breach of Sanctions Provisions. The failure of any representation or warranty of Borrower, or Borrower’s failure to perform or observe any covenant, contained in either of those Sections of this Agreement entitled “Sanctions, Anti-Corruption and Anti-Money Laundering Laws” or “Sanctions”. 13.2 ACCELERATION UPON DEFAULT; REMEDIES. (a) Upon the occurrence of any Default specified in this Article 13, Bondowner Representative, as assignee of Issuer, may, at its sole option, declare all sums owing to Bondowner Representative under the Note, this Loan Agreement and the other Loan Documents immediately due and payable (in an amount equal to that necessar y to pay in full the Bonds and the interest thereon, assuming acceleration of the Bonds under the Indenture and to pay all other indebtedness due under this Loan Agreement and the other Loan Documents). Upon such acceleration, Bondowner Representative may, in addition to all other remedies permitted under this Loan Agreement and the other Loan Documents and at law or equity, apply any sums in the Account and Borrower’s Funds Account to the sums owing under the Loan Documents and any and all obligations of Bondowner Representative to consent to further disbursements under the Loan shall terminate. (b) Whenever any Default shall have occurred and be continuing, any one or more of the following remedial steps may also be taken to the extent permitted by law: (i) the Bondowner Representative, as assignee of the Issuer, may take whatever action at law or in equity as it determines to be appropriate to collect all sums then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement, covenant, representation or warranty of Borrower, under this Loan Agreement or any other Related Document, or to foreclose the real property and/or personal property security for such obligations, or to otherwise compensate the Issuer and the Bondowner Representative for any damages on account of such Default; and (ii) the Issuer (without the prior written consent of the Bondowner Representative if the Bondowner Representative is not enforcing the Issuer’s rights in a manner to protect the Issuer or is otherwise taking action that brings adverse consequences to the Issuer), may take whatever action at law or in equity may appear necessary or appropriate to enforce its rights to indemnification under Sections 9.6, 11.38, 11.41 and 15.1 and to collect all sums then due and thereafter to become due to the Issuer under Sections 3.4(b) and (c) and 3.5 of this Loan Agreement; provided that the Issuer will not take any action which would prejudice the rights of the Bondowner Representative. (c) All of Bondowner Representative’s and Issuer’s rights and remedies are cumulative. If any Default occurs, Issuer’s obligation to lend and Bondowner Representative’s obligation to consent to disbursements of proceeds of the Loan under the Loan Documents shall automatically termin ate, and Bondowner Representative in its sole discretion may withhold any one or more disbursements. Bondowner Representative may also withhold any one or more disbursements after an event occurs that, with notice or the passage of time, could become a Default. No disbursement of Loan funds by Bondowner Representative will cure any default of Borrower, unless Bondowner Representative agrees otherwise in writing in each instance. -81- DWT 30207606v4 0088288-000026 (d) If Borrower becomes the subject of any Insolvency Proceeding, all of Borrower ’s obligations under the Loan Documents shall automatically become immediately due and payable upon the filing of the petition commencing such proceeding, all without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor, or other notices or demands of any kind or character. Upon the occurrence of any other Default, all of Borrower’s obligations under the Loan Documents may become due and payable immediately without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor or other notices or demands of any kind or character, all at Bondowner Representative’s option, exercisable in its sole discretion. If such acceleration occurs, Bondowner Representative may apply any undisbursed Loan funds and any sums in the Borrower’s Funds Account to Borrower’s obligations under the Loan Documents, in any order and proportions in Bondowner Representative’s sole discretion. Also upon any Default that occurs during the course of construction of the Project, Bondowner Representative in its sole discretion may enter and take possession of the Property, whether in person, by agent or by court -appointed receiver, and take any and all actions that Bondowner Representative in its sole discretion may consider necessary to complete construction of the Project, including making changes in plans, specifications, work or materials and entering into, modifying or terminating any contractual arrangements, all subject to Bondowner Representative’s right at any time to discontinue any work without liability. By choosing to complete the construction of the Project, Bondowner Representative does not assume any liability to Borrower or any other person for completing the Project or for the manner or quality of its construction, and Borrower expressly waives any such liability. If Bondowner Representative exercises any of the rights or remedies provided in this Section 13.2, that exercise will not make Bondowner Representative, or cause Bondowner Representative to be deemed, a partner or joint venturer of Borrower. Bondowner Representative in its sole discretion may choose to complete construction in its own name. All sums expended by Bondowner Representative in completing construction will be considered to have been disbursed to Borrower and will be secured by the Deed of Trust and any other collateral held by Bondowner Representative in connection with the Loan; any sums of principal will be considered to be an additional loan to Borrower bearing interest at the Default Rate, and be secured by the Deed of Trust and any other collateral held by Bondowner Representative in connection with the Loan. For these purposes Bondowner Representative, in its sole discretion, may reallocate any line item or cost category of the cost breakdown. 13.3 DISBURSEMENTS TO THIRD PARTIES. Upon the occurrence of a Default occasioned by Borrower’s failure to pay money to a third party as required by this Loan Agreement, Bondowner Representative may but shall not be obligated to make such payment from the Loan proceeds, Borrower’s Funds, or other funds of Bondowner Representative. If such payment is made from proceeds of the Loan or from Borrower’s Funds, Borrower shall immediately deposit with Bondowner Representative, upon written d emand, an amount equal to such payment. If such payment is made from funds of Bondowner Representative, Borrower shall immediately repay such funds upon written demand of Bondowner Representative. In either case, the Default with respect to which any such payment has been made by Bondowner Representative shall not be deemed cured until such deposit or repayment (as the case may be) has been made by Borrower to Bondowner Representative. 13.4 BONDOWNER REPRESENTATIVE’S COMPLETION OF CONSTRUCTION. Upon the occurrence of a Default, Bondowner Representative may, upon five (5) days prior written notice to Borrower, and with or without legal process, take possession of the Property and Improvements, remove Borrower and all agents, employees and contractors of Borrower from the Property and Improvements, complete the work of construction and market and sell or lease the Property and/or Improvements. For this purpose, Borrower irrevocably appoints Bondowner Representative as its attorney in fact, which agency is coupled with an interest. As attorney in-fact, Bondowner Representative may, in Borrower’s name, take or omit to take any action Bondowner Representative may deem appropriate, including, without limitation, exercising Borrower’s rights under the Loan Documents and all contracts concerning the Property and/or Improvements. 13.5 BONDOWNER REPRESENTATIVE’S CESSATION OF CONSTRUCTION. If Bondowner Representative determines at any time that the Improvements are not being constructed in accordance with the Plans and Specifications and all governmental requirements, Bondowner Representative may immediately cause all construction to cease on any of the Improvements affected by the condition of nonconformance. Borrower shall thereafter not allow any construction work, other than corrective work, to be performed on any of the Improvements -82- DWT 30207606v4 0088288-000026 affected by the condition of nonconformance until such time as Bondowner Representative notifies Borrower in writing that the nonconforming condition has been corrected. 13.6 REPAYMENT OF FUNDS ADVANCED. Any funds expended by Bondowner Representative in the exercise of its rights or remedies under this Loan Agreement and the other Loan Documents shall be payable to Bondowner Representative upon demand, together with interest at the rate applicab le to the principal balance of the Note from the date the funds were expended. 13.7 RIGHTS CUMULATIVE, NO WAIVER. All Bondowner Representative’s rights and remedies provided in this Loan Agreement and the other Loan Documents, together with those granted by l aw or at equity, are cumulative and may be exercised by Bondowner Representative at any time. Bondowner Representative’s exercise of any right or remedy shall not constitute a cure of any Default unless all sums then due and payable to Bondowner Representative under the Loan Documents are repaid and Borrower has cured all other Defaults. No waiver shall be implied from any failure of Bondowner Representative to take, or any delay by Bondowner Representative in taking, action concerning any Default or failure of condition under the Loan Documents, or from any previous waiver of any similar or unrelated Default or failure of condition. Any waiver or approval under any of the Loan Documents must be in writing and shall be limited to its specific terms. 13.8 EXERCISE OF THE ISSUER’S REMEDIES BY BONDOWNER REPRESENTATIVE. Whenever any default shall have happened and be subsisting the Bondowner Representative may, but except as otherwise provided in the Indenture shall not be obligated to, exercise any or all of the rights of the Issuer under this Article 13, with notice to the Issuer. 13.9 RIGHTS OF INVESTOR LIMITED PARTNER. Investor Limited Partner or an Investor Affiliate shall have the rights (but not the obligation) to cure any Default of Borrower under this Loan Ag reement and the other Loan Documents as provided in Section 15.43 of this Loan Agreement. 13.10 NONEXCLUSIVE REMEDIES. No remedy herein conferred upon or reserved to the Issuer or the Bondowner Representative is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Loan Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any righ t or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Bondowner Representative to exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or as may be required by law. 13.11 EFFECT OF WAIVER. In the event any agreement contained in this Loan Agreement is breached by either party and thereafter such breach is waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 13.12 BONDOWNER REPRESENTATIVE MAY FILE PROOFS OF CLAIM . In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to Borrower or the property of Borrower, th e Bondowner Representative (with the prior consent of the Bondowner Representative), shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) To file and prove a claim and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Issuer and the Bondowner Representative (including any claim for the reasonable compensation, expenses, disbursements and advances of the Issuer and Bondowner Representative, their agents and counsel) allowed in such judicial proceeding; and (b) To collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same. -83- DWT 30207606v4 0088288-000026 13.13 RESTORATION OF POSITIONS. If the Bondowner Representative has instituted any proceeding to enforce any right or remedy under this Loan Agreement, and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Bondowner Representative, then and in every such case Borrower, the Bondowner Representative shall, subject to any determination in the proceeding, be restored to the positions they held prior to commencement of such proceedings, and thereafter all rights and remedies of the Issuer and the Bondowner Representative shall continue as though no such pro ceeding had been instituted. 13.14 SUITS TO PROTECT THE PROJECT. If Borrower shall fail to do so after 30 days prior written notice from the Bondowner Representative, the Bondowner Representative shall have power to institute and to maintain such proceedings as either of them may deem expedient to prevent any impairment of the Project or any portion thereof, by any acts which may be unlawful or in violation of this Loan Agreement, and such suits and proceedings as the Bondowner Representative may deem expedient to protect its interests in the Project or any portion thereof, including power to institute and maintain proceedings to restrain the enforcement of or compliance with any governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of, or compliance with, such enactment, rule or order would impair or adversely affect the Project or be prejudicial to the interests of the Bondowner Representative. ARTICLE 14. TERMINATION 14.1 TERMINATION OF LOAN AGREEMENT; REQUIRED PREPAYMENT. (a) Except during the continuance of a Default, Borrower shall have the option of terminating this Loan Agreement if (i) the Bonds have been paid in full or if provision is otherwise made for payment of the Bonds in such manner that the Indenture will be disch arged on or before the date of termination, (ii) such prepayment and termination is allowed by the Note and the Deed of Trust, (iii) Borrower provides the Bondowner Representative and the Issuer with an opinion of Bond Counsel to the effect that all such conditions for discharge of the Indenture have been satisfied; and provided that this Loan Agreement may not be terminated unless and until (x) all of Borrower’s obligations under the Loan Documents have been satisfied and (y) all of Borrower’s obligations with respect to the Issuer’s fees and any rebate obligation have been satisfied and Borrower has so certified to the Issuer and the Bondowner Representative. All obligations of Borrower under Sections 3.3(a), 3.3(g)(i), 3.3(g)(iii), 3.3(h)(iv), 3.4, 3.16, 9.5, 11.38, 11.39, 11.41, 11.44(c) and 15.1 shall survive termination of this Loan Agreement. Notwithstanding the foregoing, Borrower may not terminate this Loan Agreement unless and until the Bondowner Representative has received an amount equal to the Bondowner Representative’s and Issuer’s fees and expenses under the Indenture and any other amounts due under Sections 3.3(a), 3.3(g)(i), 3.3(g)(iii), 3.3(h)(iv), 3.4, 3.16, 9.5, 11.38, 11.39, 11.41, 11.44(c) and 15.1 hereof, accrued and to accrue until the Bonds are fully paid and redeemed and all other advances, fees, costs and expenses reasonably incurred and to be incurred on or before the termination date by the Bondowner Representative under the Indenture and by the Issuer and the Bondowner Representat ive under this Loan Agreement and/or the other Loan Documents and the termination and payment in full of any termination fee due under any Swap Agreement between Borrower and Bondowner Representative. (b) On the termination date, a closing shall be held at any office mutually agreed upon among the Issuer, Borrower and the Bondowner Representative (which closing may be conducted by first - class mail or recognized overnight delivery service). At the closing the Issuer and the Bondowner Representative shall, upon acknowledgment of receipt of the sum required to be paid pursuant to Section 14.1(a), execute and deliver to Borrower such release and other instruments as Borrower reasonably determines is necessary to terminate this Loan Agreement. All further obligatio ns of Borrower hereunder (except as specifically provided in Sections 3.3(a), 3.3(g)(i), 3.3(g)(iii), 3.3(h)(iv), 3.4, 3.16, 9.5, 11.38, 11.39, 11.41, 11.44(c) and 15.1) shall thereupon terminate, provided, however, that Borrower shall also remain obligated to pay or reimburse the Issuer and the Bondowner Representative for the payment of all other fees, costs and expenses unaccounted for in the sum paid in accordance with Section 14.1(a) above and reasonably incurred before or subsequent to such closing i n connection with the Bonds. -84- DWT 30207606v4 0088288-000026 ARTICLE 15. MISCELLANEOUS PROVISIONS 15.1 INDEMNITY. BORROWER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS BONDOWNER REPRESENTATIVE, ITS GOVERNING BODIES, DIRECTORS, OFFICERS, OFFICIALS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS, ACTIONS, JUDGMENTS, COURT COSTS AND LEGAL OR OTHER EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) WHICH BONDOWNER REPRESENTATIVE MAY INCUR AS A DIRECT OR INDIRECT CONSEQUENCE OF: (A) THE PURPOSE TO WHICH BORROWER APPLIES THE PROCEEDS OF THE BONDS; (B) THE FAILURE OF BORROWER TO PERFORM ANY OBLIGATIONS AS AND WHEN REQUIRED BY THIS LOAN AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS; (C) ANY FAILURE AT ANY TIME OF ANY OF BORROWER’S REPRESENTATIONS OR WARRANTIES TO BE TRUE AND CORRECT; OR (D) ANY ACT OR OMISSION BY BORROWER, CONSTITUENT PARTNER OF BORROWER, ANY CONTRACTOR, SUBCONTRACTOR OR MATERIAL SUPPLIER, ENGINEER, ARCHITECT OR OTHER PERSON OR ENTITY WITH RESPECT TO ANY OF THE PROPERTY OR IMPROVEMENTS, PROVIDED, HOWEVER THAT BORROWER WILL NOT BE REQUIRED TO INDEMNIFY BONDOWNER REPRESENTATIVE FOR LIABILITIES ARISING DUE TO BONDOWNER REPRESENTATIVE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. BORROWER SHALL IMMEDIATELY PAY TO BONDOWNER REPRESENTATIVE UPON DEMAND ANY AMOUNTS OWING UNDER THIS INDEMNITY, TOGETHER WITH INTEREST FROM THE DATE THE INDEBTEDNESS ARISES UNTIL PAID AT THE RATE OF INTEREST APPLICABLE TO THE PRINCIPAL BALANCE OF THE NOTE. BORROWER’S DUTY AND OBLIGATIONS TO DEFEND, INDEMNIFY AND HOLD HARMLESS BONDOWNER REPRESENTATIVE SHALL SURVIVE CANCELLATION OF THE NOTE AND THE RELEASE, RECONVEYANCE OR PARTIAL RECONVEYANCE OF THE DEED OF TRUST. 15.2 FORM OF DOCUMENTS. The form and substance of all documents, instrume nts, and forms of evidence to be delivered to Bondowner Representative under the terms of this Loan Agreement and any of the other Loan Documents shall be subject to Bondowner Representative’s approval and shall not be modified, superseded or terminated in any respect without Bondowner Representative’s prior written approval. 15.3 NO THIRD PARTIES BENEFITED. No person other than Issuer, Bondowner Representative and Borrower and their permitted successors and assigns shall have any right of action under any of the Loan Documents, except as set forth in the Subordination Agreement. 15.4 NOTICES. All notices, demands, or other communications under this Loan Agreement and the other Loan Documents shall be in writing and shall be delivered to the appropriate party at t he address set forth on the signature page of this Loan Agreement and, as applicable, to Bondowner Representative at its Minneapolis Loan Center as specified in Exhibit D (subject to change from time to time by written notice to all other parties to this Loan Agreement). All communications shall be deemed served upon delivery of, or if mailed, upon the first to occur of receipt or the expiration of three (3) days after the deposit in the United States Postal Service mail, postage prepaid and addressed to the address of Borrower or Bondowner Representative at the address specified; provided, however, that non-receipt of any communication as the result of any change of address of which the sending party was not notified or as the result of a refusal to accept delivery shall be deemed receipt of such communication. 15.5 ATTORNEY-IN-FACT. Borrower hereby irrevocably appoints and authorizes Bondowner Representative, as Borrower’s attorney in fact, which agency is coupled with an interest, to execute and/or record in Bondowner Representative’s or Borrower’s name any notices, instruments or documents that Bondowner Representative deems appropriate to protect Bondowner Representative’s interest under any of the Loan Documents. 15.6 ACTIONS. Borrower agrees that Bondowner Representative, in exercising the rights, duties or liabilities of Bondowner Representative or Borrower under the Loan Documents, may commence, appear in or defend any action or proceeding purporting to affect the Property, the Improvements, or the Loan Doc uments and Borrower shall immediately reimburse Bondowner Representative upon demand for all such expenses so incurred or paid by Bondowner Representative, including, without limitation, attorneys’ fees and expenses and court costs. -85- DWT 30207606v4 0088288-000026 15.7 RIGHT OF CONTEST. Notwithstanding anything to the contrary herein or in any of the other Loan Documents, Borrower may contest in good faith any claim, demand, levy or assessment (other than liens and stop notices) by any person other than Bondowner Representative which would c onstitute a Default if: (a) Borrower pursues the contest diligently, in a manner which Bondowner Representative determines is not prejudicial to Bondowner Representative, and does not impair the rights of Bondowner Representative under any of the Loan Documents; and (b) Borrower deposits with Bondowner Representative any funds or other forms of assurance which Bondowner Representative in good faith determines from time to time appropriate to protect Bondowner Representative from the consequences of the contest being unsuccessful. Borrower’s compliance with this Section shall operate to prevent such claim, demand, levy or assessment from becoming a Default. 15.8 RELATIONSHIP OF PARTIES. The relationship of Borrower and Bondowner Representative under the Loan Documents is, and shall at all times remain, solely that of borrower and representative of the Bondowners, and Bondowner Representative neither undertakes nor assumes any responsibility or duty to Borrower or to any third party with respect to the Property or Improvements, except as expressly provided in this Loan Agreement and the other Loan Documents. 15.9 DELAY OUTSIDE BONDOWNER REPRESENTATIVE’S CONTROL. Bondowner Representative shall not be liable in any way to Borrower or any third party for Bondowner Repr esentative’s failure to perform or delay in performing under the Loan Documents (and Bondowner Representative may suspend or terminate all or any portion of Bondowner Representative’s obligations under the Loan Documents) if such failure to perform or delay in performing results directly or indirectly from, or is based upon, the action, inaction, or purported action, of any governmental or local authority, or because of war, rebellion, insurrection, strike, lock out, boycott or blockade (whether presently in effect, announced or in the sole judgment of Bondowner Representative deemed probable), or from any Act of God or other cause or event beyond Bondowner Representative’s control. 15.10 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT. If any attorney is engaged by Bondowner Representative to enforce or defend any provision of this Loan Agreement, any of the other Loan Documents or Other Related Documents, or as a consequence of any Default under the Loan Documents, with or without the filing of any legal action or proceeding, and including, without limitation, any fees and expenses incurred in any bankruptcy proceeding of the Borrower, then Borrower shall immediately pay to Bondowner Representative, upon demand, the amount of all attorneys’ fees and expenses and all c osts incurred by Bondowner Representative in connection therewith, together with interest thereon from the date of such demand until paid at the rate of interest applicable to the principal balance of the Note as specified therein. 15.11 IN-HOUSE COUNSEL FEES. Whenever Borrower is obligated to pay or reimburse Bondowner Representative for any attorneys’ fees, those fees shall include the allocated costs for services of in -house counsel or loan administrators. 15.12 IMMEDIATELY AVAILABLE FUNDS. Unless otherwise expressly provided for in this Loan Agreement, all amounts payable by Borrower to Bondowner Representative shall be payable only in United States currency, immediately available funds. 15.13 BONDOWNER REPRESENTATIVE’S CONSENT. Wherever in this Loan Agreement there is a requirement for Bondowner Representative’s consent and/or a document to be provided or an action taken “to the satisfaction of Bondowner Representative” or the equivalent, it is understood by such phrase that, unless otherwise stated, Bondowner Representative shall exercise its consent, right or judgment in a reasonable manner given the specific facts and circumstance applicable at the time. 15.14 BOND SALES AND PARTICIPATIONS; DISCLOSURE OF INFORMATION. Borrower acknowledges that Bondowner Representative may elect, at any time, subject to the requirements of the Indenture, to sell, assign or grant participations in all or any portion of its rights and obligations under the Bonds, and that any such sale, assignment or participation may be to one or more fi nancial institutions, private investors, and/or other entities, at Bondowner Representative’s sole discretion (“Participant”). Borrower further agrees that Bondowner Representative may disseminate to any such actual or potential purchaser(s), assignee(s) or participant(s) all documents and information (including, without limitation, all financial information) which has been or is hereafter provided to or known to Bondowner Representative with respect to: (a) the Property and Improvements and its -86- DWT 30207606v4 0088288-000026 operation; (b) any party connected with the Loan (including, without limitation, the Borrower, any partner of Borrower, any constituent partner or member of Borrower, any Guarantor, any Indemnitor and any Non -Borrower Trustor); and/or (c) any lending relationship other than the Loan which Bondowner Representative may have with any party connected with the Loan. In the event of any such sale, assignment or participation, Bondowner Representative and the parties to such transaction shall share in the rights and oblig ations of Bondowner Representative as set forth in the Loan Documents only as and to the extent they agree among themselves. In connection with any such sale, assignment or participation, Borrower further agrees that the Loan Documents shall be sufficient evidence of the obligations of Borrower to each purchaser, assignee, or participant, and upon written request by Bondowner Representative, Borrower shall enter into such amendments or modifications to the Loan Documents as may be reasonably required in order to evidence any such sale, assignment or participation. The indemnity obligations of Borrower under the Loan Documents shall also apply with respect to any purchaser, assignee or participant. Anything in this Loan Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirement of this Loan Agreement, including this Section, any lender may at any time and from time to time pledge and assign all or any portion of its rights under all or any of th e Loan Documents to a Federal Reserve Bank; provided that no such pledge or assignment shall release such lender from its obligations thereunder. 15.15 FANNIE MAE REQUIREMENTS. Borrower agrees to execute such additional documents (which documents shall be considered “Loan Documents”) as Bondowner Representative may reasonably request to facilitate the sale of the Bonds at any time to, or a credit enhancement facility with, Fannie Mae or another purchaser of loans or credit enhancement provider in the secondary market which generally follows Fannie Mae standards. If, prior to the Conversion Date, there are any modifications in or additions to any of the requirements imposed or standards used by Fannie Mae in connection with loans purchased by it or by others pur chasing loans on the secondary market, or in connection with credit enhancement facilities provided by it or other credit enhancement providers on the secondary market, and generally following Fannie Mae standards, then effective as of the Conversion Date, at Bondowner Representative’s request, Borrower shall execute amendments to the Loan Documents, or shall execute additional Loan Documents, to conform with such modifications or additions. Despite anything in the foregoing to the contrary, none of the am endments or additional documents requested hereunder shall materially change the terms of the Loan Documents or increase the financial obligations of Borrower or Issuer. 15.16 SIGNS. Bondowner Representative may place on the Property reasonable signs standard to construction loan transactions stating that construction financing is being provided by Bondowner Representative. 15.17 BONDOWNER REPRESENTATIVE’S AGENTS. Bondowner Representative may designate an agent or independent contractor to exercise any of Bondowner Representative’s rights under this Loan Agreement and any of the other Loan Documents. Any reference to Bondowner Representative in any of the Loan Documents shall include Bondowner Representative’s agents, employees or independent contractors. Borrower shall pay the costs of such agent or independent contractor either directly to such person or to Bondowner Representative in reimbursement of such costs, as applicable. 15.18 TAX SERVICE. Bondowner Representative is authorized to secure, at Borrower’s expense , a tax service contract with a third party vendor which shall provide tax information on the Property and Improvements satisfactory to Bondowner Representative. 15.19 WAIVER OF RIGHT TO TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER, BONDOWNER REPRESENTATIVE AND ISSUER EACH EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a) ARISING UNDER THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THE LOAN DOCUMENTS (AS NOW OR HEREAFTER MODIFIED) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND -87- DWT 30207606v4 0088288-000026 WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND THE BONDOWNER REPRESENTATIVE, BORROWER AND ISSUER EACH HEREBY AGREES AND CONSENTS THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF BONDOWNER REPRESENTATIVE, BORROWER AND ISSUER TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY JURY. 15.20 SEVERABILITY. If any provision or obligation under this Loan Agreement and the other Loan Documents shall be determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall be deemed severed from the Loan Documents and the validity, legality and enforceability of the remaining provisions or obligations shall remain in full force as though the invalid, illegal, or unenforceable provision had never been a part of the Loan Documents, provided, however, that if the rate of interest or any other amount payable under the Note or this Loan Agreement or any other Loan Document, or the right of collectibility therefor, are declared to be or become invalid, illegal or unenforceable, Bondowne r Representative’s obligations to make advances under the Loan Documents shall not be enforceable by Borrower. 15.21 HEIRS, SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided under the terms and conditions of this Loan Agreement, the terms of the Loan Documents shall bind and inure to the benefit of the heirs, successors and assigns of the parties. 15.22 TIME. Time is of the essence of each and every term of this Loan Agreement. 15.23 HEADINGS. All Article, Section or other headings appearing in this Loan Agreement and any of the other Loan Documents are for convenience of reference only and shall be disregarded in construing this Loan Agreement and any of the other Loan Documents. 15.24 GOVERNING LAW; VENUE. This Loan Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by federal laws. Borrower and all persons and entities in any manner obligated to Bondowner Representative under the Loan Documents consent to the jurisdiction of any federal or state court within the State of California having proper venue and also consent to service of process by any means authorized by California or federal law. Venue for any judicial proceeding hereunder shall be in Contra Costa County unless the Issuer waives that requirement in writing. 15.25 INTEGRATION; INTERPRETATION. The Loan Documents and the Bond Documents contain or expressly incorporate by reference the entire agreement of the parties with respect to the matters contemplated therein and supersede all prior negotiations or agreements, written or oral. The Loan Documents shall not be modified except by written instrument executed by all parties. Any reference to the Loan Documents includes any amendments, renewals or extensions now or hereafter approved by Bondowner Representative in writing. Whenever the context requires, all words used in the singular will be construed to have been used in the plural, and vice versa, and each gender will include any other gender. The word “inc lude(s)” means “include(s), without limitation”, and the word “including” means “including, but not limited to”. No listing of specific instances, items or matters in any way limits the scope or generality of any language of this Loan Agreement. The exhib its to this Loan Agreement are hereby incorporated in this Loan Agreement. 15.26 USA PATRIOT ACT NOTICE. COMPLIANCE. The USA Patriot Act of 2001 (Public Law 107-56) and federal regulations issued with respect thereto require all financial institutions to obtai n, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, Bondowner Representative may from time -to-time request, and Borrower shall provide to Bondowner Representative, Borrower’s name, address, tax identification number and/or such other identification information as shall be necessary for Bondowner Representative to comply with federal law. An “account” for this purpose may include, without limitation, a deposit account, cash management service, a transaction or asset account, a credit account, a loan or other extension of credit, and/or other financial services product. 15.27 JOINT AND SEVERAL LIABILITY. The liability of all persons and entities obligated in any manner under this Loan Agreement and any of the Loan Documents shall be joint and several. -88- DWT 30207606v4 0088288-000026 15.28 COUNTERPARTS. To facilitate execution, this document may be executed in as many counterparts as may be convenient or required. It shall not be necessary t hat the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages. 15.29 NO WAIVER; CONSENTS. No alleged waiver by Bondowner Representative or Issuer will be effective unless in writing, and no waiver will be construed as a continuing waiver. No waiver may be implied from any delay or failure by Bondowner Representative or Issuer to take action on account of any default of Borrower or to exercise any right or remedy against Borrower or any security. Consent by Bondowner Representative or Issuer to any act or omission by Borrower may not be construed as a consent to any other or subsequent act or omission or as a waiver of the requirement for Bondowner Representative’s consent to be obtained in any future or other instance. All of Bondowner Representative’s rights and remedies are cumulative. 15.30 AMENDMENTS, CHANGES AND MODIFICATIONS. Except as otherwise provided in this Loan Agreement or in the Indenture, subsequent to the issuance of the Bonds and before the lien of the Indenture is satisfied and discharged in accordance with its terms, this Loan Agreement may not be effectively amended, changed, modified, altered or terminated without the written consent of Bondowner Representative and Borrower (and the Issuer to the extent any proposed amendment, change or modification relates to any rights reserved by the Issuer under the Indenture). 15.31 LIMITATION ON ISSUER’S LIABILITY. The Issuer shall not be obligated to pay the principal (or redemption price) of or interest on the Bonds, except from Revenues and other moneys and assets received by the Bondowner Representative on behalf of the Issuer pursuant to this Loan Agreement. Neither the faith and credit nor the taxing power of the State or any political subdivision thereof, nor the faith and credit of the Issuer is pledged to the payment of the principal (or redemption price) or interest on the Bonds. The Issuer shall not be liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reason of or in connection with this Loan Agreement, the Bonds or the Indenture, except only to the extent amounts are received for the payment thereof from the Borrower under this Loan Agreement. The Borrower hereby acknowledges that the Issuer’s sole source of moneys to repay the Bonds will be provided by payments made by the Borrower pursuant to this Loan Agreement and the receipt of other Revenues, together with investment income on certain funds and accounts held by the Bondowner Representative under the Indenture, and hereby agrees that if the payments to be made hereunder shall ever prove insufficient to pay all principal (or redemption price) and interest on the Bonds as the same shall become due (whether by maturity, redemption, acceleration or otherwise), then upon notice from the Bondowner Representative, the Borrower shall pay such amounts as are required from time to time to prevent any deficiency or default in the p ayment of such principal (or redemption price) or interest, including, but not limited to, any deficiency caused by acts, omissions, nonfeasance or malfeasance on the part of the Bondowner Representative, the Borrower, the Issuer or any third party, subjec t to any right of reimbursement from the Bondowner Representative, the Issuer or any such third party, as the case may be, therefor. 15.32 PURPOSE AND EFFECT OF BONDOWNER REPRESENTATIVE APPROVAL. Bondowner Representative’s approval of any matter in connection with the Loan is for the sole purpose of protecting the security and rights of the Bondowner Representative. No such approval will result in a waiver of any default of Borrower. In no event may Bondowner Representative’s approval be a representation of a ny kind with regard to the matter being approved. 15.33 NO COMMITMENT TO INCREASE LOAN. From time to time, Bondowner Representative may approve changes to the Plans and Specifications at Borrower’s request and also require Borrower to make corrections to the work of construction, all on and subject to the terms and conditions of this Loan Agreement. Borrower acknowledges that no such action or other action by Bondowner Representative will in any manner commit or obligate the Issuer or Bondowner Representative to increase the amount of the Loan. -89- DWT 30207606v4 0088288-000026 15.34 RELATIONSHIPS WITH OTHER BONDOWNER REPRESENTATIVE CUSTOMERS. From time to time, Bondowner Representative may have business relationships with Borrower’s customers, suppliers, contractors, tenants, partners, shareholders, officers or directors, or with businesses offering products or services similar to those of Borrower, or with persons seeking to invest in, borrow from or lend to Borrower. Borrower agrees that Bondowner Representative may extend credit to such parties and take any action it deems necessary to collect the credit, regardless of the effect that such extension or collection of credit may have on Borrower’s financial condition or operations. Borrower further agrees that in no event will Bondowner Representative be obligated to disclose to Borrower any information concerning any other Bondowner Representative customer. 15.35 DISCLOSURE TO TITLE COMPANY. Without notice to or the consent of Borrower, Bondowner Representative may disclose to any title insurance company insuring any interest of Bondowner Representative under the Deed of Trust (whether as primary insurer, coinsurer or reinsurer) any information, data or material in Bondowner Representative’s possession relating to Borrower, the Loan, the Project or th e Property. 15.36 RESTRICTION ON PERSONAL PROPERTY. Except for the replacement of personal property made in the ordinary course of Borrower’s business with items of equal or greater value, Borrower may not sell, convey or otherwise transfer or dispose of its i nterest in any personal property in which Bondowner Representative has a security interest or contract to do any of the foregoing, without the prior written consent of Bondowner Representative in each instance. 15.37 LOAN COMMISSION. Bondowner Representative is not obligated to pay any brokerage commission or fee in connection with or arising out of the Loan. Borrower must pay any and all brokerage commissions or fees arising out of or in connection with the Loan. 15.38 COMPLIANCE WITH USURY LAWS. Notwithstanding any other provision of this Loan Agreement, it is agreed and understood that in no event shall this Loan Agreement, with respect to the Note or other instrument of indebtedness, be construed as requiring Borrower or any other person to pay interest and othe r costs or considerations that constitute interest under any applicable law which are contracted for, charged or received pursuant to this Loan Agreement in an amount in excess of the maximum amount of interest allowed under any applicable law. In the event of any acceleration of the payment of the principal amount of the Note or other evidence of indebtedness, that portion of any interest payment in excess of the maximum legal rate of interest, if any, provided for in this Loan Agreement or related docume nts shall be canceled automatically as of the date of such acceleration, or if theretofore paid, credited to the principal amount. The provisions of this Section prevail over any other provision of this Loan Agreement. 15.39 TERMINATED DOCUMENTS. The documents (the “Terminated Documents”) listed on Exhibit E attached hereto are the Loan Documents or Other Related Documents that, upon satisfaction of the terms and conditions of the Conversion, shall be released and terminated on and as of the Conversion Date. 15.40 LIMITS ON PERSONAL LIABILITY. (a) Non-Recourse. From and after the Conversion Date and the purchase of the Bonds by CCRC, and except as otherwise provided in this Section 15.40, the Borrower and any partner of Borrower shall have no personal liability under this Loan Agreement and the Loan Documents for the repayment of amounts owing under this Loan Agreement and the Note or for the performance of any other obligations of the Borrower under this Loan Agreement, the Note, the Deed of Trust and the other Loan Docu ments (collectively, the “Obligations”), and the only recourse for the satisfaction and the performance of the Obligations shall be the exercise of rights and remedies with respect to the Property and the Improvements and any other collateral which is security for the Obligations. This limitation on the Borrower’s and any partner or member of Borrower’s liability shall not limit or impair the enforcement of rights against any Indemnitor. (b) Exceptions to Non-Recourse. The Borrower and any general partner of Borrower (each individually, or on a joint and several basis if more than one) shall be personally liable in the amount of any loss, damage or cost (including but not limited to reasonable attorneys’ fees) resulting from one or more of -90- DWT 30207606v4 0088288-000026 the following: (i) fraud or written material misrepresentation by Borrower or its agents or employees, or Borrower’s partner or its agents or employees, in connection with obtaining the loan evidenced by this Note, or in complying with any of Borrower’s obligations under the Bond Documents and the Loan Documents; (ii) Borrower’s failure to pay (beyond any applicable notice and cure periods) any and all insurance proceeds, condemnation awards, damage proceeds, security deposits received from tenants or other sums or payments received by or on behalf of Borrower in its capacity as owner of the Property and not applied in accordance with the provisions of the Deed of Trust and the Loan Documents (except to the extent that Borrower did not have the legal right because of a bankrupt cy, receivership or similar judicial proceeding, to direct disbursement of such sums or payments); (iii) Borrower’s failure to pay all Payments (as defined in the Deed of Trust) actually received by Borrower not applied to the payment of the reasonable operating expenses of the Project as set forth herein and then to the payment of principal and interest then due and owing under this Note and any other amounts arising or due and owing under the Bond Documents and the Loan Documents, including but not limited to deposits or reserves payable under any Loan Document (except to the extent that Borrower did not have the legal right, because of a bankruptcy, receivership or similar judicial proceeding, to direct the disbursement of such sums); (iv) Borrower’s failure, following an event of default under any of the Bond Documents and/or the Loan Documents beyond any applicable notice or cure period to deliver to Bondowner Representative on demand all Payments (as defined in the Deed of Trust) (except to the extent t hat Borrower did not have the legal right because of a bankruptcy, receivership or similar judicial proceeding to direct the disbursement of such sums), books and records relating to the Project; (v) commission of material waste by Borrower (or any general partner, officer, director or agent of Borrower or any guarantor or owner of any collateral as described in the Deed of Trust or the Loan Documents); provided, however, that failure of Borrower to restore or repair the Project after damage or destruction to them shall not be material waste, notwithstanding the availability of insurance proceeds or condemnation awards in connection therewith; and (vi) the presence or release of any “Hazardous Materials” on, in or under the Project. (c) Waiver of Personal Liability of the Issuer. No member, officer, agent or employee of the Issuer or any of its program participants shall be individually or personally liable for the payment of any principal (or redemption price) or interest on the Bonds or any other sum hereunder or be subject to any personal liability or accountability by reason of the execution and delivery of this Loan Agreement; but nothing herein contained shall relieve any such member, officer, agent or employee from the performance of any official duty provided by law or by this Loan Agreement. To the extent that the Borrower and/or any general partner of Borrower has personal liability under this Section 15.40, Bondowner Representative may exercise its rights against the Borrower and/or any general partner of Borrower personally without regard to whether Bondowner Representative has exercised any rights against the Property or any other security, or pursued any rights against any guarantor, or pursued any other rights available to Bondowner Representative under this Loan Agreement, the Note, the Deed of Trust, or applicable law. For purposes of this Section 15.40, the term “Subject Property” shall not include any funds that (a) have been applied by the Borrower as required or permitted by the Deed of Trust pr ior to the occurrence of a Default, or (b) the Borrower was unable to apply as required or permitted by the Deed of Trust because of a bankruptcy, receivership, or similar judicial proceeding. 15.41 REMOVAL OF GENERAL PARTNER. Notwithstanding anything to the contrary contained in this Loan Agreement, the replacement of General Partner for cause in accordance with the Partnership Agreement shall not constitute a default under any of the Loan Documents or accelerate the maturity of the Loan; provided, however, such substitute General Partner must be reasonably satisfactory to and approved in writing by Bondowner Representative. Such acceptable substitute General Partner is to be selected no later than thirty (30) days and admitted no later than sixty (60) days after the date of the removal of the General Partner. Further, any removal and replacement of General Partner not in accordance with the Partnership Agreement shall require the prior written consent of Bondowner Representative, which consent shall not be unreasonably withheld. Any substitute General Partner shall assume all of the rights and obligations of the removed General Partner under all of the Loan Documents, pursuant to an assumption agreement in the form provided by Bondowner Representative. -91- DWT 30207606v4 0088288-000026 15.42 TRANSFER OF LIMITED PARTNER INTERESTS. The interests of the Investor Limited Partner shall be transferable to a Permitted Transferee and such transfer shall not constitute a Default under any of the Loan Documents. 15.43 CURE OF DEFAULTS. Notwithstanding anything to the contrary herein, any cure of any Default made or tendered by the Investor Limited Partner shall be deemed to be a cure by Borrower and shall be accepted or rejected on the same basis as if made or tendered by Borrower; provided, however, if in order to cure such default, the Investor Limited Partner reasonably believes that it must remove the general partner of Borrower pursuant to the Partnership Agreement and the Investor Limited Partner notifies Bondowner Representative of such removal, so long as the Investor Limited Partner is diligently attempting to remove the general partner, the Investor Limited Partner shall have until the date thirty (30) days after the effective date of the removal of the general partner, or such longer period as provided herein, to cure such Default or alleged Default. 15.44 EXTENDED USE AGREEMENT. Upon Conversion, Bondowner Representative acknowledges that Borrower and the State of California, acting through TCAC intend to enter into an extended use agreement, which constitutes the extended low-income housing commitment described in Section 42(h)(6)(B) of the Internal Revenue Code, as amended (the “Code”). As of the date hereof, Code Section 42(h)(6)(E)(ii) does not permit the eviction or termination of tenancy (other than fo r good cause) of an existing tenant of any low-income unit or any increase in the gross rent with respect to such unit not otherwise permitted under Code Section 42 for a period of three (3) years after the date the building is acquired by foreclosure or b y instrument in lieu of foreclosure. In the event the extended use agreement required by the Credit Agency is recorded against the Property, Bondowner Representative agrees to comply with the provisions set forth in Code Section 42(h)(6)(E)(ii). 15.45 AFFIRMATIVE ACTION. Borrower shall not discriminate in its employment practices against any employee or applicant for employment because of the applicant’s race, creed, religion, national origin or ancestry, sex, age, sexual orientation or preference, marital status, color, physical disability, familial status and disability, mental conditions or medical conditions, including pregnancy, childbirth or related condition. 15.46 JUDICIAL REFERENCE. (a) At all times from and after the Conversion Date, the parties hereto agree that any and all disputes, claims and controversies arising out of the Loan Documents or the transactions contemplated thereby (including, without limitation, actions arising in contract or tort and any claims by a party against Bondowner Representative and/or the Issuer related in any way to the Bonds or the transactions contemplated hereunder) (a “Dispute”) that are brought before a forum in which the pre -dispute waivers of the right to trial by jury set forth in Section 15.19 above are invalid under appli cable law shall be subject to the terms of this Section 15.46 in lieu of the jury trial waivers set forth in Section 15.19 or as otherwise provided in the Loan Documents. (b) Any and all such Disputes shall be heard by a referee and resolved by judicial refe rence pursuant to California Code of Civil Procedure § 638 et seq. The parties shall use their respective commercially reasonable and good faith efforts to agree upon and select such referee, who shall be a retired California state or federal judge, provided, however, that the parties shall not appoint a referee that may be disqualified pursuant to California Code of Civil Procedure § 641 or § 641.2 without the prior written consent of all the parties. If the parties are unable to agree upon a referee wit hin ten (10) calendar days after a party serves written notice of intent for judicial reference upon the other party or parties, then the referee shall be selected by the court in accordance with California Code of Civil Procedure § 640(b). The referee shall render a written statement of decision and shall conduct the proceedings in accordance with the California Code of Civil Procedure, the Rules of Court and the California Evidence Code, except as otherwise specifically agreed by the parties and approved by the referee. The referee’s statement of decision shall set forth findings of fact and conclusions of law. The referee’s decision shall be entered as a judgment in the court in accordance with the provisions of California Code of Civil Procedure §§ 64 4-645. The decision of the referee shall be appealable to the same extent and in the same manner that such decision would be appealable if rendered by a judge of the superior court. -92- DWT 30207606v4 0088288-000026 (c) If a Dispute includes multiple claims, some of which are found not subj ect to this Loan Agreement, the parties shall stay the proceedings of the Disputes or part or parts thereof not subject to this Loan Agreement until all other Disputes or parts thereof are resolved in accordance with this Loan Agreement. If there are Disputes by or against multiple parties, some of which are not subject to this Loan Agreement, the parties shall sever the Disputes subject to this Loan Agreement and resolve them in accordance with this Loan Agreement. (d) Nothing in this Section 15.46 shall be deemed to apply to or limit the rights of Bondowner Representative and/or Issuer (i) to exercise self-help remedies, including, without limitation, setoff, or (ii) to foreclose judicially or nonjudicially against any real or personal property collateral, or to exercise judicial or nonjudicial power of sale rights, or (iii) to obtain from a court provisional or ancillary remedies, including, without limitation, injunctive relief, writ(s) of possession, prejudgment attachment, protective order(s) or the appointment of a receiver, or (iv) to pursue rights against a party in a third -party proceeding in any action brought against Bondowner Representative and/or Issuer, including, without limitation, actions in bankruptcy court. Bondowner Representative and/or Iss uer may exercise the foregoing rights before, during or after the pendency of any judicial reference proceeding. The failure to exercise any of the foregoing remedies shall not constitute a waiver of the right of any party, including, without limitation, the claimant in any such action, to require submission to judicial reference the merits of the Dispute giving rise to such remedies. No provision in the Loan Documents regarding submission to jurisdiction and/or venue in any court is intended or shall be construed to be in derogation of the provisions in this Section for judicial reference of any Dispute. (e) During the pendency of any Dispute which is submitted to judicial reference in accordance with this Section, each of the parties to such Dispute shall b ear equal share of the fees charged and costs incurred by the referee in performing the services described herein. The compensation of the referee shall not exceed the prevailing rate for like services. The prevailing party shall be entitled to reasonable court costs and legal fees, including customary attorneys’ fees, expert witness fees, the fees of the referee and other reasonable costs and disbursements charged to the party by its counsel, in such amounts as determined by the referee. (f) Each party hereto acknowledges and agrees that the provisions of this Section constitute a material inducement to enter into this Loan Agreement, the Loan Documents and to consummate the transactions contemplated thereunder, and that the parties will continue to be bound by and rely on such provisions in the course of their dealings with regard to any Dispute governed by the provisions of this Section. Each party hereto further warrants and represents that it has reviewed these provisions with legal counsel of its own choosing, or has had the opportunity to do so, and that it knowingly and voluntarily agrees to abide by the provisions of this Section having had the opportunity to consult with legal counsel. (g) THIS SECTION CONSTITUTES A “REFERENCE AGREEMENT” BETWEEN OR AMONG THE PARTIES WITHIN THE MEANING OF AND FOR THE PURPOSES OF CALIFORNIA CODE OF CIVIL PROCEDURE § 638. IN THE EVENT OF LITIGATION, THIS LOAN AGREEMENT MAY BE FILED AS EVIDENCE OF EITHER OR ALL PARTIES’ CONSENT AND AGREEMENT TO HAVE ANY AND ALL DISPUTES HEARD AND DETERMINED BY A REFEREE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE § 638. THE PARTIES ACKNOWLEDGE THAT JUDICIAL REFERENCE PROCEEDINGS CONDUCTED IN ACCORDANCE WITH THIS SECTION WOULD BE CONDUCTED BY A PRIVATE REFEREE ONLY, SITTING WITHOUT A JURY. 15.47 ELECTRONIC TRANSMISSION OF DATA. Bondowner Representative and Borrower agree that certain data related to the Loan (including confidential information, documents, applications and reports) may be transmitted electronically, including transmission over the Internet. This data may be transmitted to, received from or circulated among agents and representatives of Borrower and/or Bondowner Representative and their affiliates and other persons involved with the subject matter of this Agreement. Borrower acknowledges and agrees that (a) there are risks associated with the use of electronic transmission and that Bondowner Representative does not control the method of transmittal or service providers, (b) Bondowner Representative has no obligation or responsibility whatsoever and assumes no duty or obligation for the security, receipt or third party interception of any such transmission, and (c) BORROWER SHALL RELEASE, HOLD HARMLESS AND INDEMNIFY -93- DWT 30207606v4 0088288-000026 BONDOWNER REPRESENTATIVE FOR, FROM AND AGAINST ANY CLAIM, DAMAGE OR LOSS, INCLUDING THAT ARISING IN WHOLE OR PART FROM BONDOWNER REPRESENTATIVE’S STRICT LIABILITY OR SOLE, COMPARATIVE OR CONTRIBUTORY NEGLIGENCE, WHICH IS RELATED TO THE ELECTRONIC TRANSMISSION OF DATA. [Remainder of Page Intentionally Left Blank] [Hana Gardens - Signature Page to Loan Agreement] DWT 30207606v4 0088288-000026 IN WITNESS WHEREOF, Issuer, Borrower and Bondowner Representative have executed this Loan Agreement as of the date appearing on the first page of this Loan Agreement. ISSUER: COUNTY OF CONTRA COSTA, a _________________________________ By: ______________________________________ [Name] [Title] Issuer’s Address: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, California 94553 Attention: Community Development Bond Program Manager [Hana Gardens - Signature Page to Loan Agreement] DWT 30207606v4 0088288-000026 BONDOWNER REPRESENTATIVE: WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association By: ______________________________________ Jeff Bennett Senior Vice President Bondowner Representative’s Address: Wells Fargo Bank, National Association Community Lending and Investment MAC# A0119-183 333 Market Street, 18th Floor San Francisco, California 94105 Tel. No.: (415) 801-8525 Fax No.: (415) 801-8640 Attention: Jean Hembree with a copy to: California Community Reinvestment Corporation 225 West Broadway, Suite 120 Glendale, California 91204 Attention: President [Hana Gardens - Signature Page to Loan Agreement] DWT 30207606v4 0088288-000026 BORROWER: EL CERRITO SENIOR, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its General Partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its Manager By: _________________________________ [Name] [Title] Borrower’s Address: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541-5031 Attention: President With a copy to: Wells Fargo Affordable Housing Community Development Corporation MAC #D1053-170 301 South College Street, 17th Floor Charlotte, NC 28288 Attention: Director of Asset Management and Wells Fargo Bank, N.A. MAC #X2401-06T 1 Home Campus, 6th Floor Des Moines, IA 50328-0001 Attention: Joel Hjelmaas, Counsel A-1 DWT 30207606v4 0088288-000026 EXHIBIT A - PROPERTY DESCRIPTION Exhibit A to Loan Agreement between EL CERRITO SENIOR, L.P., a California limited partnership, as “Borrower”, the COUNTY OF CONTRA COSTA, as “Issuer”, and WELLS FARGO BANK, NATIONAL ASSOCIATION, and its successors and assigns, as “Bondowner Representative”, dated as of ///[December 1, 2016]///. B-1 DWT 30207606v4 0088288-000026 EXHIBIT B - DOCUMENTS Exhibit B to Loan Agreement between EL CERRITO SENIOR, L.P., a California limited partnership, as “Borrower”, the COUNTY OF CONTRA COSTA, as “Issuer”, and WELLS FARGO BANK, NATIONAL ASSOCIATION, and its successors and assigns, as “Bondowner Representative”, dated as of ///[December 1, 2016]///. 1. Loan Documents. The documents listed below, numbered 1.1 through ____, inclusive, and amendments, modifications and supplements thereto which have received the prior written consent of Bondowner Representative, together with any documents executed in the future that are approved by Bondowner Representative and that recite that they are “Loan Documents” for purposes of this Loan Agreement are collectively referred to herein as the Loan Documents. 1.1 This Loan Agreement. 1.2 Promissory Note, together with an Allonge executed by Issuer in favor of Bondowner Representative. 1.3 The Construction and Permanent Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing of even date herewith executed by Borrower, as Trustor, to American Securities Company, a California corporation, as Trustee, for the benefit of Issuer, as Beneficiary, who has assigned its rights thereunder to the Bondowner Representative. 1.4 The Subordination Agreements. 1.5 Assignment of Deed of Trust and Loan Documents of even date herewith, executed by Issuer as Assignor in favor of Bondowner Representative as Assignee and consented to by Borrower. 1.6 Security Agreement of even date herewith executed by Borrower and General Partner as debtor in favor of Bondowner Representative. 1.7 Security Agreement (Rights to Payment) of even date herewith executed by B orrower, as debtor, in favor of Bondowner Representative. 1.8 Uniform Commercial Code – National Financing Statements – form UCC 1 (Deed of Trust), dated of even date herewith showing Borrower as Debtor, and Bondowner Representative and Issuer as Secured Party (for filing in California). 1.9 Uniform Commercial Code – National Financing Statements – form UCC 1 (Tax Credits), dated of even date herewith showing Borrower and General Partner as Debtor, and Bondowner Representative as Secured Party (for filing in California). 1.10 Assignment of Construction Contracts of even date herewith executed by Borrower and Contractor in favor of Bondowner Representative. 1.11 Assignment of Architectural Agreements and Plans and Specifications of even date herewith executed by Borrower and Architect in favor of Bondowner Representative. 1.12 Assignment of Civil Engineering Agreements and Plans and Specifications of even date herewith executed by Borrower in favor of Bondowner Representative. 1.13 Assignment of Management Agreement of even date herewith executed by Borrower and Property Manager in favor of Bondowner Representative. 1.14 Assignment of Agreement to Enter Into Housing Assistance Payments Contract, Housing Assistance Payments Contract and Housing Assistance Paymen ts of even date herewith executed B-2 DWT 30207606v4 0088288-000026 by Borrower in favor of Bondowner Representative and consented to by ///[Contract Administrator]///. 1.15 Replacement Reserve Agreement of even date herewith executed by Borrower and Bondowner Representative. 1.16 Disbursement Instruction Agreement executed by Borrower. 1.17 Agreement for Disbursement Prior to Recording and Amendment to Note of even date herewith executed by Borrower and Bondowner Representative. 1.18 Copartnership, Joint Venture or Association Borrowing Ce rtificate of even date herewith executed by General Partner. 1.19 Corporate Resolution Authorizing Partnership Activity executed by the Secretary of Eden Development, Inc., a California nonprofit public benefit corporation. 2. Other Related Documents (Which Are Not Loan Documents): 2.1 Completion Guaranty of even date herewith executed by Guarantor, in favor of Bondowner Representative. 2.2 Repayment Guaranty of even date herewith executed by Guarantor, in favor of Bondowner Representative. 2.3 Hazardous Materials Indemnity Agreement (Unsecured - Borrower) dated of even date herewith executed by Borrower in favor of Bondowner Representative. 2.4 Hazardous Materials Indemnity Agreement (Unsecured - Guarantor) dated of even date herewith executed by Guarantor in favor of Bondowner Representative. 2.5 Opinion of Borrower’s Legal Counsel dated as of the Effective Date, executed by Borrower’s Legal Counsel on behalf of Borrower, Guarantor and Indemnitor, in favor of Bondowner Representative and its successors and assigns. 2.6 Opinion of Bond Counsel. 2.7 Bond Purchase Agreement of even date herewith executed by and among Bondowner Representative, CCRC and Borrower. 2.8 Corporate Resolution Authorizing Execution of Guaranty and Indemnity and Endorsement and Hypothecation of Property executed by Eden Housing, Inc., a California nonprofit public benefit corporation. 2.9 Any Swap Agreement between Borrower and Bondowner Representative. C-1 DWT 30207606v4 0088288-000026 EXHIBIT C - FINANCIAL REQUIREMENT ANALYSIS Exhibit C to Loan Agreement between EL CERRITO SENIOR, L.P., a California limited partnership, as “Borrower”, the COUNTY OF CONTRA COSTA, as “Issuer”, and WELLS FARGO BANK, NATIONAL ASSOCIATION, and its successors and assigns, as “Bondowner Representative”, dated as of ///[December 1, 2016]///. The Financial Requirement Analysis set forth herein represents an analysis of the total costs necessary in Borrower’s estimation to perform Borrower’s obligations under the Loan Documents. Column A, “Original Budget,” sets forth Borrower’s representation of the maximum costs for each Item specified in Column A. Column B, “Deferred Costs” sets forth Borrower’s representation of costs that Borrower has paid or has caused to be paid from other sources of funds for each Item specified in Column B. Column C, “Net Construction Budget” sets forth the portion of the Loan and Borrower’s Funds which has been allocated for each Item specified in Column C and will be disbursed pursuant to the terms, covenants, conditions and provisions of Exhibit D of this Loan Agreement and the Loan Documents. Unless specified otherwise, all reference to Columns or Items in this Loan Agreement refer to Columns or Items in this Exhibit C. C-2 DWT 30207606v4 0088288-000026 EXHIBIT C ///[To Follow]/// D-1 DWT 30207606v4 0088288-000026 EXHIBIT D - DISBURSEMENT PLAN Exhibit D to Loan Agreement between EL CERRITO SENIOR, L.P., a California limited partnership, as “Borrower”, the COUNTY OF CONTRA COSTA, as “Issuer”, and WELLS FARGO BANK, NATIONAL ASSOCIATION, and its successors and assigns, as “Bondowner Representative”, dated as of ///[December 1, 2016]///. 1. Timing of Disbursement. Unless another provision of this Loan Agreement specifies otherwise, on or about the last day of each month, or at such other times as Bondowner Representative may approve or determine more appropriate, Borrower shall submit to: Wells Fargo Bank, National Association Minneapolis Loan Center 600 South 4th Street, 9th Floor Minneapolis, MN 55415 Attention: Disbursement Administrator, Maria Letran (612) 667-7526 a written itemized statement, signed by Borrower (“Application for Payment”) setting forth: 1.1 a description of the work performed, material supplied and/or costs incurred or due for which disbursement is requested with respect to any line item (“Item”) shown in Column D (“Disbursement Budget”) of the Financial Requirement Analysis attached as Exhibit C to this Loan Agreement; and 1.2 the total amount incurred, expended and/or due for each requested Item less prior disbursements. 1.3 Each Application for Payment by Borrower shall constitute a representation and warrant y by Borrower that Borrower is in compliance with all the conditions precedent to a disbursement specified in this Loan Agreement. 1.4 Bondowner Representative shall have the right to require that Disbursements shall be made, after satisfaction of the conditions contained in this Exhibit D and the Disbursement Plan. Disbursements shall be made into Borrower’s demand deposit account at Wells Fargo Bank, National Association, account number 4490321577 (the “Account”). 2. Bondowner Representative’s Right to Condition Disbursements. Bondowner Representative shall have the right to condition any disbursement upon Bondowner Representative’s receipt and approval of the following: 2.1 the Application for Payment and an itemized requisition for payment of line items shown in the Disbursement Budget as hard costs (“Hard Costs”); 2.2 bills, invoices, documents of title, vouchers, statements, payroll records, receipts and any other documents evidencing the total amount expended, incurred or due for any requested Items; 2.3 evidence of Borrower’s use of a lien release, joint check and voucher system acceptable to Bondowner Representative for payments or disbursements to any contractor, subcontractor, materialman, supplier or lien claimant; 2.4 architect’s, inspector’s and/or engineer’s periodic certifications of the percentage and/or stage of construction that has been completed and its conformance to the Plans and Specifications and governmental requirements based upon any such architect’s, inspector’s and/or engineer’s periodic physical inspections of the Property and Improvements; 2.5 waivers and releases of any mechanics’ lien, stop notice claim, equitable lien claim or other lien claim rights; D-2 DWT 30207606v4 0088288-000026 2.6 evidence of Borrower’s compliance with the provisions of the Articles a nd Sections of this Loan Agreement entitled Construction and Authority/Enforceability; 2.7 a written release executed by any surety to whom Bondowner Representative has issued or will issue a set-aside letter and/or any public entity or agency which is a b eneficiary under any instrument of credit or standby letter of credit which Bondowner Representative has issued or will issue with respect to the Loan; 2.8 valid, recorded Notice(s) of Completion for the Improvements or any portions of the Improvements for which Notice(s) of Completion may be recorded under applicable law; 2.9 Certificate of Substantial Completion from the Architect and Engineer, if any, prior to the final retention disbursement or the final stage disbursement of Hard Costs, as applicable; 2.10 evidence satisfactory to Bondowner Representative that the Permanent Bondowner Representative, if any, has approved the completed Improvements and that all conditions precedent to the initial funding of the permanent financing, if any, have been satis fied prior to the final retention disbursement or the final stage disbursement of Hard Costs, as applicable; 2.11 any other document, requirement, evidence or information that Bondowner Representative may request under any provision of the Loan Documents; and 2.12 evidence that any goods, materials, supplies, fixtures or other work in process for which disbursement is requested have been incorporated into the Improvements. 2.13 in the event that any Application for Payment includes the cost of materials stored on the Property (“Onsite Materials”), such Application for Payment shall include each of the following: (a) evidence that the Onsite Materials have been purchased by Borrower; (b) evidence that the Onsite Materials are insured as required hereunder; and (c) evidence that the Onsite Materials are stored in an area on the Property for which adequate security is provided against theft and vandalism. 2.14 in the event any Application for Payment includes the cost of materials stored at a location other than the Property (“Offsite Materials”), such Application for Payment shall include each of the following: (a) evidence that the Offsite Materials have been purchased by Borrower, have been segregated from other materials in the facility and have been appropri ately marked to indicate Borrower’s ownership thereof and Bondowner Representative’s security interest therein; and (b) evidence that the Offsite Materials are insured as required by this Loan Agreement; and (c) at Bondowner Representative’s request, a security agreement, financing statement and/or subordination agreement in form and substance satisfactory to Bondowner Representative executed by the supplier of the Offsite Materials, and/or such other persons as Bondowner Representative determines may have an interest in or claim to the Offsite Materials, together with such other additional documentation and evidence as Bondowner Representative may reasonably require to assure itself that it has a perfected first priority lien on the Offsite Materials. Borrower acknowledges that this approval process may result in disbursement delays and Borrower hereby consents to all such delays. D-3 DWT 30207606v4 0088288-000026 ///[THE FOLLOWING PROVISIONS TO BE ADJUSTED UPON AGREEMENT OF COST BREAKDOWN]/// 3. Periodic Disbursement of Land Costs. The portion of the Disbursement Budget totaling $___________ has been disbursed to or for the benefit or account of Borrower for the payment of Borrower’s Land Costs. 4. Periodic Disbursement of Construction Budget Fees and Costs. The portion of the Disbursement Budget totaling $___________ has been disbursed to or for the benefit or account of Borrower for the payment of Borrower’s Rehab Budget Fees and Costs items up to ninety percent (90%) of the maximum amount allocated for such item less prior disbursements. The remaining ten percent (10%) shall be disbursed into the Account or to or for the benefit or account of Borrower upon completion of the construction work to be performed in connection with the Project in accordance with the Plans and Specifications and governmental requirements, the expiration of the statutory lien period and Bondowner Representative’s receipt of an LP -10 Re-Write of the Title Policy. 5. Hard Costs Contingency Reserve. The portion of the Disbursement Budget initially totaling $___________, allocated for the payment of Hard Costs Contingencies, shall be periodically reallocated within the Disbursement Budget or disbursed into the Account or to or for the benefit or account of Borrower for cost overruns that have been approved by Bondowner Representative for Hard Cost Items and disbursed in accordance with paragraphs 2 through 6 hereof and Section 4.11(b) of the Loan Agreement depending upon the intended use of any such funds. 6. Periodic Disbursement of Accounting/Audit Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Accounting/Audit Fees and Costs. 7. Periodic Disbursement of Appraisal Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Appraisal Fees and Costs. 8. Periodic Disbursement of Architectural Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Architectural Fees and Costs. 9. Periodic Disbursement of Capitalized Rent Reserve Funds. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for payment of Borrower’s Capitalized Rent Reserve funds. 10. Periodic Disbursement of CCRC Permanent Loan Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s CCRC Permanent Loan Fees and Costs. 11. Periodic Disbursement of Fees and Costs of Issuance (Bond Counsel & Issuer). The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Fees and Costs of Issuance (Bond Counsel & Issuer). 12. Periodic Disbursement of Furnishings Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Furnishings Fees and Costs. 13. Periodic Disbursement of Insurance Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Insurance Fees and Costs. D-4 DWT 30207606v4 0088288-000026 14. Periodic Disbursement of Internet & Security Cameras Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Internet & Security Cameras Fees and Costs. 15. Periodic Disbursement of Legal - Partnership Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Legal - Partnership Fees and Costs. 16. Periodic Disbursement of Market Study Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Market Study Fees and Costs. 17. Periodic Disbursement of Marketing Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Marketing Fees and Costs. 18. Periodic Disbursement of Permits and Impact Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Permits and Impact Fees and Costs. 19. Periodic Disbursement of Phase I Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Phase I Fees and Costs. 20. Periodic Disbursement of Relocation Fees a nd Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Relocation Fees and Costs. 21. Periodic Disbursement of Security and Site Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Security and Site Fees and Costs. 22. Periodic Disbursement of Survey & Engineering Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Survey & Engineering Fees and Costs. 23. Periodic Disbursement of Taxes Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Taxes Costs. 24. Periodic Disbursement of TCAC Application and Monitoring Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s TCAC Application and Monitoring Fees and Costs. 25. Periodic Disbursement of Title & Recording Fees and Costs. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Title & Recording Fees and Costs. 26. Periodic Disbursement of Lender Legal (WFB and CCRC) Fees and Costs . The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Lender Legal (WFB and CCRC) Fees and Costs. D-5 DWT 30207606v4 0088288-000026 27. Periodic Disbursement of WFB Loan Fee. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s WFB Loan Fee. 28. Periodic Disbursement of WFB Interest Carry Reserve Funds. The portion of the Disbursement Budget initially totaling $___________, allocated as an Interest Carry Reserve, shall be periodically disbursed directly to Bondowner Representative for the payment of interest which accrues and becomes due under the Note. Bondowner Representative is hereby authorized to charge the Loan directly for such interest payments when due. Bondowner Representative shall provide Borrower with a monthly interest statement. Depletion of the Interest Carry Reserve shall not release Borrower from any of Borrower’s obligations under the Loan Documents, including, without limitation, payment of all accrued and due interest and the deposit of Borrower’s Funds with Bondowner Representative pursuant to the terms and provisions of the Loan Agreement. 29. Soft Costs Contingency Reserve. The portion of the Disbursement Budget allocated for the payment of Soft Cost Contingencies initially totaling $___________, shall be periodically reallocated within the Disbursement Budget or disbursed into the Account or to or for the benefit or account of the Borrower for cost overruns that have been approved by Bondowner Representative for Soft Costs Items and disbursed in accordance with Exhibit D hereof, depending upon the intended use of any such funds. 30. Periodic Disbursement of Developer Fees. The portion of the Disbursement Budget initially totaling $___________, shall be periodically disbursed into the Account or to or for the benefit or account of Borrower for the payment of Borrower’s Developer Fees in accordance with and subject to Section 4.11(c) of the Loan Agreement . E-1 DWT 30207606v4 0088288-000026 EXHIBIT E – TERMINATED DOCUMENTS Exhibit E to Loan Agreement between EL CERRITO SENIOR, L.P., a California limited partnership, as “Borrower”, the COUNTY OF CONTRA COSTA, as “Issuer”, and WELLS FARGO BANK, NATIONAL ASSOCIATION, and its successors and assigns, as “Bondowner Representative”, dated as of ///[December 1, 2016]///. 1) Security Agreement 2) UCC-1 Financing Statement (Tax Credits) 3) Completion Guaranty 4) Repayment Guaranty 5) Hazardous Materials Indemnity Agreement (Unsecured - Guarantor) 6) Security Agreement (Rights to Payment) Loan No. 1016291 EXHIBIT F DWT 30207606v4 0088288-000026 EXHIBIT F – DISBURSEMENT INSTRUCTION AGREEMENT Borrower: El Cerrito Senior, L.P. Lender: Wells Fargo Bank, National Association Loan: Loan number 1016291 made pursuant to that certain Loan Agreement dated as of ///[December 1, 2016]/// among the County of Contra Costa, Borrower and Lender, as amended from time to time. Effective Date: ///[December 1, 2016]/// Check applicable box: X New – This is the first Disbursement Instruction Agreement submitted in connection with the Loan. Replace Previous Agreement – This is a replacement Disbursement Instruction Agreement. All prior instructions submitted in connection with this Loan are cancelled as of the Effective Date set forth above. This Agreement must be signed by the Borrower and is used for the following purposes: (1) to designate an individual or individuals with authority to request disbursements of Loan proceeds, whether at the time of Loan closing/origination or thereafter; (2) to designate an individual or individuals with authority to request disbursements of funds from Restricted Accounts (as defined in the Terms and Conditions attached to this Agreement), if applicable; and (3) to provide Lender with specific instructions for wiring or transferring funds on Borrower’s behalf. Any of the disbursements, wires or transfers described above is referred to herein as a “Disbursement.” Specific dollar amounts for Disbursements must be provided to Lender at the time of the applicable Disbursement in the form of a signed closing statement, an email instruction or other written communication (each, a “Disbursement Request”) from an applicable Authorized Representative (as defined in the Terms and Conditions attached to this Agreement). A new Disbursement Instruction Agreement must be completed and signed by the Borrower if (i) all or any portion of a Disbursement is to be transferred to an account or an entity not described in this Agreement or (ii) Borrower wishes to add or remove any Authorized Representatives. See the Additional Terms and Conditions attached hereto for additional information and for definitions of certain capitalized terms used in this Agreement. 1 Maximum Wire Amount may not exceed the Loan Amount. F-1 DWT 30207606v4 0088288-000026 Disbursement of Loan Proceeds at Origination/Closing Closing Disbursement Authorizers: Lender is authorized to accept one or more Disbursement Requests from any of the individuals named below (each, a “Closing Disbursement Authorizer”) to disburse Loan proceeds on or about the date of the Loan origination/closing and to initiate Disbursements in connection therewith (each, a “Closing Disbursement”): Individual’s Name Title 1. Linda Mandolini Authorized Signatory 2. Jan Peters Authorized Signatory 3. Corinne Morrison Authorized Signatory Describe Restrictions, if any, on the authority of the Closing Disbursement Authorizers (dollar amount limits, wire/deposit destinations, etc.): NONE If there are no restrictions described here, any Closing Disbursement Authorizer may submit a Disbursement Request for all available Loan proceeds. Permitted Wire Transfers: Disbursement Requests for the Closing Disbursement(s) to be made by wire transfer must specify the amount and applicable Receiving Party. Each Receiving Party included in any such Disbursement Request must be listed below. Lender is authorized to use the wire instructions that have been provided directly to Lender by the Receiving Party or Borrower and attached as the Closing Exhibit. All wire instructions must contain the information specified on the Closing Exhibit. Names of Receiving Parties for the Closing Disbursement(s) (may include as many parties as needed; wire instructions for each Receiving Party must be attached as the Closing Exhibit) 1. Old Republic Title Company Direct Deposit: Disbursement Requests for the Closing Disbursement(s) to be deposited into an account at Wells Fargo Bank, N.A. must specify the amount and applicable account. Each account include d in any such Disbursement Request must be listed below. Name on Deposit Account: El Cerrito Senior, L.P. Wells Fargo Bank, N.A. Deposit Account Number: 4490321577 Further Credit Information/Instructions: El Cerrito Senior, L.P., Loan No. 1016291 1 Maximum Wire Amount may not exceed the Loan Amount. F-2 DWT 30207606v4 0088288-000026 Disbursements of Loan Proceeds Subsequent to Loan Closing/Origination Subsequent Disbursement Authorizers: Lender is authorized to accept one or more Disbursement Requests from any of the individuals named below (each, a “Subsequent Disbursement Authorizer”) to disburse Loan proceeds after the date of the Loan origination/closing and to initiate Disbursements in connection therewith (each, a “Subsequent Disbursement”): Individual’s Name Title 1. Linda Mandolini Authorized Signatory 2. Jan Peters Authorized Signatory 3. Corinne Morrison Authorized Signatory Describe Restrictions, if any, on the authority of the Subsequent Disbursement Authorizers (dollar amount limits, wire/deposit destinations, etc.): N/A If there are no restrictions described here, any Subsequent Disbursement Authorizer may submit a Disbursement Request for all available Loan proceeds. Direct Deposit: Disbursement Requests for Subsequent Disbursements to be deposited into an account at Wells Fargo Bank, N.A. must specify the a mount and applicable account. Each account included in any such Disbursement Request must be listed below. Name on Deposit Account: El Cerrito Senior, L.P. Wells Fargo Bank, N.A. Deposit Account Number: 4490321577 Further Credit Information/Instructions: Loan No. 1016291 1 Maximum Wire Amount may not exceed the Loan Amount. F-3 DWT 30207606v4 0088288-000026 Borrower acknowledges that all of the information in this Agreement is correct and agrees to the terms and conditions set forth herein and in the Additional Terms and Conditions on the following page. Date: ///[December 1, 2016]/// BORROWER: EL CERRITO SENIOR, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its General Partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its Manager By: _________________________________ [Name] [Title] 1 Maximum Wire Amount may not exceed the Loan Amount. F-4 DWT 30207606v4 0088288-000026 Additional Terms and Conditions to the Disbursement Instruction Agreement Definitions. The following capitalized terms shall have the meanings set forth below: “Authorized Representative” means any or all of the Closing Disbursement Authorizers, Subsequent Disbursement Authorizers and Restricted Account Disbursement Authorizers, as applicable. “Receiving Bank” means the financial institution where a Receiving Party maintains its account. “Receiving Party” means the ultimate recipient of funds pursuant to a Disbursement Request. “Restricted Account” means an account at Wells Fargo Bank, N.A. associated with the Loan to which Borrower’s access is restricted. Capitalized terms used in these Additional Terms and Conditions to Disbursement Instruction Agreement and not otherwise defined herein shall have the meanings given to such terms in the body of the Agreement. Disbursement Requests. Lender must receive Disbursement Requests in writing. Verbal requests are not accepted. Disbursement Requests will only be accepted from the applicable Authorized Representatives designated in the Disbursement Instruction Agreement. Disbursement Requests will be processed subject to satisfactory completion of Lender’s customer verification procedures. Lender is only responsible for making a good faith effort to execute each Disbursement Request and may use agents of its choice to execute Disbursement Requests. Funds disbursed pursuant to a Disbursement Request may be transmitted directly to the Receiving Bank, or indirectly to the Receiving Bank through another bank, government agency, or other third party that Lender considers to be reasonable. Lender will, in its sole discretion, determine the funds transfer system and the mean s by which each Disbursement will be made. Lender may delay or refuse to accept a Disbursement Request if the Disbursement would: (i) violate the terms of this Agreement; (ii) require use of a bank unacceptable to Lender or prohibited by government authority; (iii) cause Lender to violate any Federal Reserve or other regulatory risk control program or guideline; or (iv) otherwise cause Lender to violate any applicable law or regulation. Limitation of Liability. Lender shall not be liable to Borrower or an y other parties for: (i) errors, acts or failures to act of others, including other entities, banks, communications carriers or clearinghouses, through which Borrower’s requested Disbursements may be made or information received or transmitted, and no such entity shall be deemed an agent of Lender; (ii) any loss, liability or delay caused by fires, earthquakes, wars, civil disturbances, power surges or failures, acts of government, labor disputes, failures in communications networks, legal constraints or other events beyond Lender’s control; or (iii) any special, consequential, indirect or punitive damages, whether or not (A) any claim for these damages is based on tort or contract or (B) Lender or Borrower knew or should have known the likelihood of these damages in any situation. Lender makes no representations or warranties other than those expressly made in this Agreement. IN NO EVENT WILL LENDER BE LIABLE FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY IF A DISBURSEMENT REQUEST IS EXECUTED BY LENDER IN GOOD FAITH AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. Reliance on Information Provided. Lender is authorized to rely on the information provided by Borrower or any Authorized Representative in or in accordance with this Agreement when executing a Disbursement Request until Lender has received a new Agreement signed by Borrower. Borrower agrees to be bound by any Disbursement Request: (i) authorized or transmitted by Borrower; or (ii) made in Borrower’s name and accepted by Lender in good faith and in compliance with this Agreement, even if not properly authorized by Borrower. Lender may rely solely (i) on the account number of the Receiving Party, rather than the Receiving Party’s name, and (ii) on the bank routing number of the Receiving Bank, rather than the Receiving Bank’s name, in executing a Disbursement Request. Lender is not obligated or required in any way to take any actions to detect errors in information provided by Borrower or an Authorized Representative. If Lender takes any actions in an attempt to detect errors in the transmission or content of transfers or requests or takes any actions in an attempt to detect unauthorized Disbursement Requests, Borrower agrees that, no matter how many times Lender takes these actions, Lender will not in any situation be liable for failing to take or correctly perform these actions in the future, and such actions shall not become any part of the Disbursement procedures authorized herein, in the Loan Documents, or in any agreement between Lender and Borrower. 1 Maximum Wire Amount may not exceed the Loan Amount. F-5 DWT 30207606v4 0088288-000026 International Disbursements. A Disbursement Request expressed in US Dollars will be sent in US Dollars, even if the Receiving Party or Receiving Bank is located outside the United States. Lender will not execute Disbursement Requests expressed in foreign currency unless permitted by the Loan Agreement. Errors. Borrower agrees to notify Lender of any errors in the Disbursement of any funds or of any unauthorized or improperly authorized Disbursement Requests within fourteen (14) days after Lender’s confirmation to Borrower of such Disbursement. If Lender is notified that it did not disburse the full amount requested in a Disbursement Request, Lender’s sole liability will be to promptly disburse the amount of the stated deficiency. If Lender disburses an amount in excess of the amount requested in a Disbursement Request, Lender will only be liable for such excess amount to the extent that Borrower does not receive the benefit of such amount. Finality of Disbursement Requests. Disbursement Requests will be final and will not be subject to stop payment or recall; provided that Lender may, at Borrower’s request, make an effort to effect a stop payment or recall but will incur no liability whatsoever for its failure or inability to do so. - i - DWT 30207606v4 0088288-000026 TABLE OF CONTENTS Page ARTICLE 1. DEFINITIONS......................................................................................................................................... 3 1.1 DEFINED TERMS ..................................................................................................................................... 3 1.2 EXHIBITS INCORPORATED ................................................................................................................. 14 ARTICLE 2. ISSUANCE OF BONDS; PAYMENT OF ISSUANCE COSTS .......................................................... 14 2.1 ISSUANCE OF BONDS ........................................................................................................................... 15 2.2 NO WARRANTY BY ISSUER ................................................................................................................ 15 2.3 PAYMENT OF COSTS OF ISSUANCE BY BORROWER .................................................................... 15 ARTICLE 3. THE LOAN............................................................................................................................................ 16 3.1 THE LOAN ............................................................................................................................................... 16 3.2 LOAN DISBURSEMENTS ...................................................................................................................... 16 3.3 LOAN REPAYMENT AND PAYMENT OF OTHER AMOUNTS ........................................................ 16 3.4 ADDITIONAL CHARGES ...................................................................................................................... 18 3.5 CONVERSION TO PERMANENT TERM.............................................................................................. 18 3.6 FIRST OPTION TO EXTEND ................................................................................................................. 18 3.7 SECOND OPTION TO EXTEND ............................................................................................................ 20 3.8 INTEREST RATE, LOAN REPAYMENT AND PREPAYMENT CHARGE AFTER THE CONVERSION DATE.............................................................................................................................. 21 3.9 BORROWER’S OBLIGATIONS UNCONDITIONAL ........................................................................... 22 3.10 ASSIGNMENT OF ISSUER’S RIGHTS.................................................................................................. 22 3.11 LOAN FEES ............................................................................................................................................. 22 3.12 LOAN DOCUMENTS .............................................................................................................................. 23 3.13 EFFECTIVE DATE .................................................................................................................................. 23 3.14 CREDIT FOR PRINCIPAL PAYMENTS ................................................................................................ 23 3.15 FULL REPAYMENT AND RECONVEYANCE..................................................................................... 23 3.16 ISSUER FEE ............................................................................................................................................. 23 ARTICLE 4. DISBURSEMENT OF LOAN FUNDS ................................................................................................. 23 4.1 CONDITIONS PRECEDENT TO INITIAL DISBURSEMENTS OF PROCEEDS OF THE BONDS .. 23 4.2 CONDITION PRECEDENT TO ANY POST -CLOSING DISBURSEMENT ........................................ 28 4.3 CONDITIONS PRECEDENT TO ANY DISBURSEMENT ................................................................... 29 4.4 ACCOUNT, PLEDGE AND ASSIGNMENT, AND DISBURSEMENT AUTHORIZATION............... 31 4.5 BORROWER’S FUNDS ACCOUNT, PLEDGE AND ASSIGNMENT ................................................. 31 4.6 FINANCIAL REQUIREMENTS ANALYSIS ......................................................................................... 32 4.7 BALANCING ........................................................................................................................................... 32 4.8 FUNDS TRANSFER DISBURSEMENTS ............................................................................................... 32 4.9 LOAN DISBURSEMENTS ...................................................................................................................... 33 4.10 CONDITIONS TO THE OBLIGATIONS OF THE ISSUER .................................................................. 33 ARTICLE 5. CONSTRUCTION ................................................................................. Error! Bookmark not defined. 5.1 COMMENCEMENT AND COMPLETION OF CONSTRUCTION ....................................................... 33 5.2 FORCE MAJEURE ................................................................................................................................... 33 5.3 CONSTRUCTION AGREEMENT ........................................................................................................... 33 5.4 ARCHITECT’S AGREEMENT ............................................................................................................... 33 5.5 PLANS AND SPECIFICATIONS. ........................................................................................................... 34 5.6 CONTRACTOR AND CONSTRUCTION INFORMATION .................................................................. 34 ii DWT 30207606v4 0088288-000026 5.7 PROHIBITED CONTRACTS .................................................................................................................. 35 5.8 LIENS AND STOP NOTICES ................................................................................................................. 35 5.9 CONSTRUCTION RESPONSIBILITIES ................................................................................................ 35 5.10 ASSESSMENTS AND COMMUNITY FACILITIES DISTRICTS ........................................................ 35 5.11 DELAY ..................................................................................................................................................... 35 5.12 INSPECTIONS ......................................................................................................................................... 35 5.13 SURVEY ................................................................................................................................................... 36 5.14 PAYMENT AND PERFORMANCE BONDS ......................................................................................... 36 5.15 PROJECT, TITLE, OPERATION AND MAINTENANCE. .................................................................... 36 5.16 ADVANCES ............................................................................................................................................. 37 5.17 ALTERATIONS TO THE PROJECT AND REMOVAL OF EQUIPMENT .......................................... 37 5.18 CONSTRUCTION SCHEDULE .............................................................................................................. 37 5.19 PRESERVATION OF RIGHTS................................................................................................................ 38 5.20 MAINTENANCE AND REPAIR ............................................................................................................. 38 5.21 PERFORMANCE OF ACTS .................................................................................................................... 38 5.22 MANAGEMENT AGREEMENT............................................................................................................. 38 5.23 TAX RECEIPTS ....................................................................................................................................... 38 ARTICLE 6. CONVERSION ...................................................................................................................................... 38 6.1 CONVERSION CONDITIONS ................................................................................................................ 38 ARTICLE 7. INSURANCE......................................................................................................................................... 38 7.1 TITLE INSURANCE ................................................................................................................................ 38 7.2 PROPERTY INSURANCE ....................................................................................................................... 38 7.3 FLOOD HAZARD INSURANCE ............................................................................................................ 40 7.4 LIABILITY INSURANCE ....................................................................................................................... 40 7.5 OTHER COVERAGE ............................................................................................................................... 40 7.6 OTHER INSURANCE .............................................................................................................................. 40 7.7 GENERAL. ............................................................................................................................................... 40 ARTICLE 8. REPRESENTATIONS AND WARRANTIES ...................................................................................... 42 8.1 REPRESENTATIONS AND WARRANTIES OF THE ISSUER ............................................................ 42 8.2 REPRESENTATIONS AND WARRANTIES OF THE BORROWER ................................................... 42 8.3 TAX EXEMPTION; REGULATORY AGREEMENT ............................................................................ 49 8.4 REPRESENTATIONS OF BORROWER AS SINGLE PURPOSE ENTITY. ........................................ 50 ARTICLE 9. HAZARDOUS MATERIALS ............................................................................................................... 51 9.1 SPECIAL REPRESENTATIONS AND WARRANTIES ........................................................................ 51 9.2 BORDER ZONE PROPERTY .................................................................. Error! Bookmark not defined. 9.3 HAZARDOUS MATERIALS COVENANTS ......................................................................................... 52 9.4 INSPECTION BY BONDOWNER REPRESENTATIVE ....................................................................... 53 9.5 HAZARDOUS MATERIALS INDEMNITY ........................................................................................... 53 9.6 LEGAL EFFECT OF SECTION............................................................................................................... 53 ARTICLE 10. SET ASIDE LETTERS........................................................................................................................ 53 10.1 SET ASIDE LETTERS ............................................................................................................................. 53 ARTICLE 11. COVENANTS OF BORROWER ........................................................................................................ 54 11.1 COMPLIANCE WITH COVENANTS .................................................................................................... 54 11.2 EXPENSES ............................................................................................................................................... 54 11.3 ERISA COMP LIANCE ............................................................................................................................ 55 iii DWT 30207606v4 0088288-000026 11.4 TAX CREDIT INVESTMENT ................................................................................................................. 55 11.5 OTHER INVESTMENT IN BORROWER .............................................................................................. 55 11.6 TAX EXEMPTION ................................................................................................................................... 55 11.7 PROCEEDS OF THE CAPITAL CONTRIBUTIONS ............................................................................. 56 11.8 LEASING .................................................................................................................................................. 56 11.9 APPROVAL OF LEASES ........................................................................................................................ 56 11.10 INCOME TO BE APPLIED TO DEBT SERVICE .................................................................................. 56 11.11 SUBDIVISION MAPS.............................................................................................................................. 56 11.12 OPINION OF LEGAL COUNSEL ........................................................................................................... 57 11.13 FURTHER ASSURANCES ...................................................................................................................... 57 11.14 ASSIGNMENT ......................................................................................................................................... 57 11.15 COMPLIANCE WITH LAWS ................................................................................................................. 57 11.16 MAINTENANCE AND SECURITY FOR PROJECT ............................................................................. 57 11.17 NOTICE OF CERTAIN MATTERS ........................................................................................................ 57 11.18 LIENS ON PROPERTY ........................................................................................................................... 58 11.19 PROHIBITION OF TRANSFER. ............................................................................................................. 58 11.20 MANAGEMENT OF PROPERTY ........................................................................................................... 60 11.21 PARTNERSHIP DOCUMENTS; NO AMENDMENTS ......................................................................... 60 11.22 RESTRICTIONS ....................................................................................................................................... 61 11.23 TAXES AND IMPOSITIONS .................................................................................................................. 61 11.24 COMPLIANCE WITH LIHTC ................................................................................................................. 62 11.25 TAX CREDIT DOCUMENTATION ....................................................................................................... 63 11.26 ADDITIONAL FINANCING ................................................................................................................... 63 11.27 PERMITS, LICENSES AND APPROVALS ............................................................................................ 63 11.28 PUBLICITY .............................................................................................................................................. 63 11.29 AFFORDABILITY COVENANTS .......................................................................................................... 63 11.30 SUBORDINATION OF INDEBTEDNESS AND REGULATORY RESTRICTIONS ........................... 64 11.31 IMPOUNDS FOR REAL PROPERTY TAXES ....................................................................................... 64 11.32 NO SALE OF PROPERTY ....................................................................................................................... 64 11.33 NONRESIDENTIAL LEASES ................................................................................................................. 64 11.34 LANDLORD OBLIGATIONS ................................................................................................................. 64 11.35 [RESERVED]............................................................................................................................................ 64 11.36 COVENANT FOR THE BENEFIT OF THE BONDHOLDERS ............................................................. 64 11.37 INSPECTION AND ACCESS. ................................................................................................................. 65 11.38 INDEMNITY. ........................................................................................................................................... 65 11.39 TAX STATUS OF BONDS ...................................................................................................................... 67 11.40 INCORPORATION OF TAX CERTIFICATE ......................................................................................... 67 11.41 LOSS OF TAX EXCLUSION .................................................................................................................. 67 11.42 TAXES, REGULATORY COSTS AND RESERVE PERCENTAGES .................................................. 68 11.43 AMENDMENT OF REGULATORY AGREEMENT ............................................................................. 68 11.44 TAX COVENANTS ................................................................................................................................. 68 11.45 DEBT SERVICE COVERAGE RATIO. .................................................................................................. 69 11.46 OPERATING EXPENSES ........................................................................................................................ 71 11.47 OPERATING RESERVES ....................................................................................................................... 72 11.48 SUBORDINATE LOANS ........................................................................................................................ 72 iv DWT 30207606v4 0088288-000026 11.49 AMERICANS WITH DISABILITIES ACT COMPLIANCE .................................................................. 73 11.50 KEEPING GUARANTOR AND INVESTOR LIMITED PARTNER INFORMED ............................... 73 11.51 STATUS OF BORROWER. ..................................................................................................................... 73 11.52 FILING OF FINANCING STATEMENTS .............................................................................................. 73 11.53 NEGATIVE COVENANTS ...................................................................................................................... 73 11.54 DERIVATIVE DOCUMENTS ................................................................................................................. 74 11.55 NOTICES FROM TCAC .......................................................................................................................... 74 ARTICLE 12. REPORTING COVENANTS .............................................................................................................. 74 12.1 FINANCIAL INFORMATION................................................................................................................. 74 12.2 BOOKS AND RECORDS ........................................................................................................................ 75 12.3 REPORTS ................................................................................................................................................. 75 12.4 LEASING REPORTS ............................................................................................................................... 75 12.5 OPERATING STATEMENTS FOR PROPERTY AND IMPROVEMENT S.......................................... 75 12.6 ADDITIONAL FINANCIAL INFORMATION ....................................................................................... 75 12.7 NOTICE FROM INVESTOR LIMITED PARTNER ............................................................................... 76 ARTICLE 13. DEFAULTS AND REMEDIES........................................................................................................... 76 13.1 DEFAULT ................................................................................................................................................. 76 13.2 ACCELERATION UPON DEFAULT; REMEDIES ............................................................................... 80 13.3 DISBURSEMENTS TO THIRD PARTIES.............................................................................................. 81 13.4 BONDOWNER REPRESENTATIVE’S COMPLETION OF CONSTRUCTION .................................. 81 13.5 BONDOWNER REPRESENTATIVE’S CESSATION OF CONSTRUCTION ...................................... 81 13.6 REPAYMENT OF FUNDS ADVANCED ............................................................................................... 82 13.7 RIGHTS CUMULATIVE, NO WAIVER................................................................................................. 82 13.8 EXERCISE OF THE ISSUER’S REMEDIES BY BONDOWNER REPRESENTATIVE ..................... 82 13.9 RIGHTS OF INVESTOR LIMITED PARTNER ..................................................................................... 82 13.10 NONEXCLUSIVE REMEDIES ............................................................................................................... 82 13.11 EFFECT OF WAIVER ............................................................................................................................. 82 13.12 BONDOWNER REPRESENTATIVE MAY FILE PROOFS OF CLAIM .............................................. 82 13.13 RESTORATION OF POSITIONS ............................................................................................................ 83 13.14 SUITS TO PROTECT THE PROJECT .................................................................................................... 83 ARTICLE 14. TERMINATION .................................................................................................................................. 83 14.1 TERMINATION OF LOAN AGREEMENT; REQUIRED PREPAYMENT. ......................................... 83 ARTICLE 15. MISCELLANEOUS PROVISIONS .................................................................................................... 84 15.1 INDEMNITY ............................................................................................................................................ 84 15.2 FORM OF DOCUMENTS ........................................................................................................................ 84 15.3 NO THIRD PARTIES BENEFITED ........................................................................................................ 84 15.4 NOTICES .................................................................................................................................................. 84 15.5 ATTORNEY-IN-FACT ............................................................................................................................ 84 15.6 ACTIONS ................................................................................................................................................. 84 15.7 RIGHT OF CONTEST .............................................................................................................................. 85 15.8 RELATIONSHIP OF PARTIES ............................................................................................................... 85 15.9 DELAY OUTSIDE BONDOWNER REPRESENTATIVE’S CONTROL .............................................. 85 15.10 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT .................................................................. 85 15.11 IN-HOUSE COUNSEL FEES .................................................................................................................. 85 15.12 IMMEDIATELY AVAILABLE FUNDS ................................................................................................. 85 v DWT 30207606v4 0088288-000026 15.13 BONDOWNER REPRESENTATIVE’S CONSENT ............................................................................... 85 15.14 BOND SALES AND PARTICIPATIONS; DISCLOSURE OF INFORMATION .................................. 85 15.15 FANNIE MAE REQUIREMENTS ........................................................................................................... 86 15.16 SIGNS ....................................................................................................................................................... 86 15.17 BONDOWNER REPRESENTATIVE’S AGENTS.................................................................................. 86 15.18 TAX SERVICE ......................................................................................................................................... 86 15.19 WAIVER OF RIGHT TO TRIAL BY JURY ........................................................................................... 86 15.20 SEVERABILITY ...................................................................................................................................... 87 15.21 HEIRS, SUCCESSORS AND ASSIGNS ................................................................................................. 87 15.22 TIME ......................................................................................................................................................... 87 15.23 HEADINGS .............................................................................................................................................. 87 15.24 GOVERNING LAW; VENUE.................................................................................................................. 87 15.25 INTEGRATION; INTERPRETATION .................................................................................................... 87 15.26 USA PATRIOT ACT NOTICE. COMPLIANCE ..................................................................................... 87 15.27 JOINT AND SEVERAL LIABILITY ....................................................................................................... 87 15.28 COUNTERPARTS .................................................................................................................................... 88 15.29 NO WAIVER; CONSENTS ..................................................................................................................... 88 15.30 AMENDMENTS, CHANGES AND MODIFICATIONS ........................................................................ 88 15.31 LIMITATION ON ISSUER’S LIABILITY .............................................................................................. 88 15.32 PURPOSE AND EFFECT OF BONDOWNER REPRESENTATIVE APPROVAL .............................. 88 15.33 NO COMMITMENT TO INCREASE LOAN .......................................................................................... 88 15.34 RELATIONSHIPS WITH OTHER BONDOWNER REPRESENTATIVE CUSTOMERS .................... 89 15.35 DISCLOSURE TO TITLE COMPANY ................................................................................................... 89 15.36 RESTRICTION ON PERSONAL PROPERTY ....................................................................................... 89 15.37 LOAN COMMISSION ............................................................................................................................. 89 15.38 COMPLIANCE WITH USURY LAWS ................................................................................................... 89 15.39 TERMINATED DOCUMENTS ............................................................................................................... 89 15.40 LIMITS ON PERSONAL LIABILITY. .................................................................................................... 89 15.41 REMOVAL OF GENERAL PARTNER .................................................................................................. 90 15.42 TRANSFER OF LIMITED PARTNER INTERESTS .............................................................................. 91 15.43 INTENTIONALLY OMITTED ................................................................ Error! Bookmark not defined. 15.44 EXTENDED USE AGREEMENT ............................................................................................................ 91 15.45 AFFIRMATIVE ACTION ........................................................................................................................ 91 15.46 JUDICIAL REFERENCE. ........................................................................................................................ 91 EXHIBIT A DESCRIPTION OF PROPERTY EXHIBIT B DOCUMENTS EXHIBIT C FINANCIAL REQUIREMENT ANALYSIS EXHIBIT D DISBURSEMENT PLAN EXHIBIT E TERMINATED LOAN DOCUMENTS EXHIBIT F FUNDS TRANSFER DESIGNATION Quint & Thimmig LLP 8/23/16 8/31/16 9/27/16 11/9/16 03007.37:J14209 INDENTURE OF TRUST by and between the COUNTY OF CONTRA COSTA, CALIFORNIA as Issuer and WELLS FARGO BANK, NATIONAL ASSOCIATION, as the initial Bondowner Representative dated as of December 1, 2016 relating to: $__________ County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E -i- TABLE OF CONTENTS ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Section 1.01. Definitions. ...................................................................................................................................................... 2 Section 1.02. Rules of Construction. ................................................................................................................................... 9 ARTICLE II THE BONDS Section 2.01. Authorization. ................................................................................................................................................. 9 Section 2.02. Terms of Bonds. .............................................................................................................................................. 9 Section 2.03. Payment of Bonds. ....................................................................................................................................... 10 Section 2.04. Execution of Bonds. ...................................................................................................................................... 11 Section 2.05. Transfer of Bonds; Condition to Conversion Date. .................................................................................. 11 Section 2.06. Bond Register. ............................................................................................................................................... 13 Section 2.07. Replacement of Bonds ................................................................................................................................. 13 ARTICLE III ISSUANCE OF BONDS; APPLICATION OF PROCEEDS Section 3.01. Authentication and Delivery of the Bonds. .............................................................................................. 13 Section 3.02. Application of Proceeds of Bonds. ............................................................................................................. 14 Section 3.03. Program Fund. .............................................................................................................................................. 14 ARTICLE IV REDEMPTION OF BONDS Section 4.01. Circumstances of Redemption. ................................................................................................................... 15 Section 4.02. No Notice of Redemption ........................................................................................................................... 16 Section 4.03. Effect of Redemption. .................................................................................................................................. 16 Section 4.04. Assignment of Loan and Tender of Bonds................................................................................................ 16 ARTICLE V REVENUES Section 5.01. Power to Issue Bonds; Pledge of Revenues. .............................................................................................. 17 Section 5.02. Bond Fund. .................................................................................................................................................... 19 Section 5.03. Investment of Moneys ................................................................................................................................. 19 Section 5.04. Enforcement of Obligations ........................................................................................................................ 20 ARTICLE VI COVENANTS OF THE ISSUER Section 6.01. Payment of Principal and Interest. ............................................................................................................. 21 Section 6.02. Paying Agents. .............................................................................................................................................. 21 Section 6.03. Preservation of Revenues; Amendment of Documents .......................................................................... 21 Section 6.04. Compliance with Indenture. ....................................................................................................................... 22 Section 6.05. Further Assurances. ..................................................................................................................................... 22 Section 6.06. No Arbitrage. ................................................................................................................................................ 22 Section 6.07. Limitation of Expenditure of Proceeds ...................................................................................................... 22 Section 6.08. Rebate of Excess Investment Earnings to United States. ......................................................................... 23 Section 6.09. Limitation on Issuance Costs. ..................................................................................................................... 23 Section 6.10. Federal Guarantee Prohibition. .................................................................................................................. 23 Section 6.11. Prohibited Facilities. ..................................................................................................................................... 23 Section 6.12. Use Covenant ................................................................................................................................................ 23 Section 6.13. Immunities and Limitations of Responsibility of Issuer ......................................................................... 24 Section 6.14. Additional Representations by the Issuer ................................................................................................. 24 -ii- ARTICLE VII DEFAULT Section 7.01. Events of Default; Acceleration; Waiver of Default ................................................................................. 25 Section 7.02. Institution of Legal Proceedings by Bondowner Representative. .......................................................... 27 Section 7.03. Application of Moneys Collected by Bondowner Representative. ........................................................ 27 Section 7.04. Effect of Delay or Omission to Pursue Remedy. ...................................................................................... 27 Section 7.05. Remedies Cumulative. ................................................................................................................................. 28 Section 7.06. Covenant to Pay Bonds in Event of Default.............................................................................................. 28 Section 7.07. Bondowner Representative Appointed Agent for Bondholders. ........................................................... 28 Section 7.08. Power of Bondowner Representative to Control Proceedings. .............................................................. 28 Section 7.09. Limitation on Bondholders’ Right to Sue. ................................................................................................. 29 Section 7.10. Limitation of Liability to Revenues. ........................................................................................................... 29 ARTICLE VIII THE BONDOWNER REPRESENTATIVE AND AGENTS Section 8.01. Duties, Immunities and Liabilities of Bondowner Representative. ....................................................... 30 Section 8.02. Right of Bondowner Representative to Rely Upon Documents, Etc. .................................................... 32 Section 8.03. Bondowner Representative Not Responsible for Recitals. ...................................................................... 33 Section 8.04. Intervention by Bondowner Representative. ............................................................................................ 33 Section 8.05. Moneys Received by Bondowner Representative. ................................................................................... 34 Section 8.06. Compensation and Indemnification of Bondowner Representative and Agents. ............................... 34 Section 8.07. Qualifications of Bondowner Representative. .......................................................................................... 35 Section 8.08. Merger or Consolidation of Bondowner Representative. ....................................................................... 35 Section 8.09. Dealing in Bonds. ......................................................................................................................................... 35 Section 8.10. Indemnification of Issuer by Bondowner Representative ....................................................................... 35 Section 8.11. Bondowner Representative Not Agent of Issuer...................................................................................... 36 ARTICLE IX MODIFICATION OF INDENTURE Section 9.01. Modification of Indenture ........................................................................................................................... 36 Section 9.02. Effect of Supplemental Indenture. ............................................................................................................. 37 Section 9.03. Opinion of Counsel as to Supplemental Indenture. ................................................................................ 37 Section 9.04. Notation of Modification on Bonds; Preparation of New Bonds. .......................................................... 37 ARTICLE X DISCHARGE OF INDENTURE Section 10.01. Discharge of Indenture. ............................................................................................................................... 37 ARTICLE XI MISCELLANEOUS Section 11.01. Successors of Issuer. ..................................................................................................................................... 38 Section 11.02. Limitation of Rights to Parties and Bondholders. .................................................................................... 38 Section 11.03. Waiver of Notice. .......................................................................................................................................... 38 Section 11.04. Destruction of Bonds.................................................................................................................................... 38 Section 11.05. Separability of Invalid Provisions. ............................................................................................................. 38 Section 11.06. Notices. .......................................................................................................................................................... 38 Section 11.07. Authorized Representatives........................................................................................................................ 40 Section 11.08. Evidence of Rights of Bondholders. ........................................................................................................... 40 Section 11.09. Waiver of Personal Liability. ...................................................................................................................... 41 Section 11.10. Holidays. ....................................................................................................................................................... 41 Section 11.11. Execution in Several Counterparts. ............................................................................................................ 41 Section 11.12. Governing Law. ............................................................................................................................................ 41 Section 11.13. Successors. ..................................................................................................................................................... 41 -iii- EXHIBIT A FORM OF BOND EXHIBIT B FORM OF INVESTOR’S LETTER -1- INDENTURE OF TRUST This Indenture of Trust, dated as of December 1, 2016 (this “Indenture”), is by and between the COUNTY OF CONTRA COSTA, CALIFORNIA, a political subdivision and body corporate and politic, duly organized and existing under the laws of the State of California (the “Issuer”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association organized under the laws of the United States of America, and being qualified to accept and administer the obligations and duties of the Bondowner Representative hereunder, as the initial bondowner representative (the “Bondowner Representative”). RECITALS: WHEREAS, under the provisions of Chapter 7 of Part 5 of Division 31 (commencing with Section 52075) of the California Health and Safety Code (the “Act”), the Issuer proposes to issue its County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E (the “Bonds”); and WHEREAS, the proceeds of the Bonds will be used to fund a loan to El Cerrito Senior, L.P., a California limited partnership (the “Borrower”) pursuant to a Loan Agreement, dated as of December 1, 2016, among the Issuer, the Bondowner Representative and the Borrower (the “Loan Agreement”), to provide financing for the construction of 63 units of multifamily rental housing (the “Project”) to be located at 10860 San Pablo Avenue in the City of El Cerrito, California; and WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and secured and to secure the payment of the principal thereof and of the interest and premium, if any, thereon, the Issuer has authorized the execution and delivery of this Indenture; and WHEREAS, all conditions, things and acts required by the Act, and by all other laws of the State of California, to exist, have happened and have been performed precedent to and in connection with the issuance of the Bonds exist, have happened, and have been performed in due time, form and manner as required by law, and the Issuer is now duly authorized and empowered, pursuant to each and every requirement of law, to issue the Bonds for the purpose, in the manner and upon the terms herein provided; and WHEREAS, all acts and proceedings required by law necessary to make the Bonds, when executed by the Issuer, authenticated and delivered by the Bondowner Representative and duly issued, the valid, binding and legal limited obligations of the Issuer, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth, in accordance with its terms, have been done and taken, and the execution and delivery of this Indenture have been in all respects duly authorized. -2- AGREEMENT: NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of, and the interest and premium, if any, on, all Bonds at any time issued and outstanding under this Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and for and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the owners thereof, and for other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Issuer covenants and agrees with the Bondowner Representative, for the equal and proportionate benefit of the respective registered owners from time to time of the Bonds, as follows: ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in this Section 1.01 shall, for all purposes of this Indenture and of the Loan A greement and of any indenture supplemental hereto or agreement supplemental thereto, have the meanings herein specified, as follows: The term “Act” means Chapter 7 of Part 5 of Division 31 (commencing with Section 52075) of the California Health and Safety Code. The term “Administrator” means the Issuer, or any administrator appointed by the Issuer as agent of the Issuer in the administration of the Regulatory Agreement. The term “Agreement” or “Loan Agreement” shall mean the Loan Agreement, dated as of December 1, 2016, among the Issuer, the Bondowner Representative and the Borrower, pursuant to which the Issuer agrees to loan the proceeds of the Bonds to the Borrower, as originally executed or as it may from time to time be supplemented or amended in ac cordance with its terms. The term “Approved Institutional Buyer” means (a) an affiliate of Wells Fargo Bank, National Association or CCRC, (b) a trust or custodial arrangement established by Wells Fargo Bank, National Association or one of its affiliates, or CCRC or its affiliates, the owners of the beneficial interests in which are limited to qualified institutional buyers, as defined in Rule 144A promulgated under the Securities Act of 1933, as amended (“QIBs”), (c) to an entity that is a QIB and a commercial bank having capital and surplus of $5,000,000,000, or (d) a limited partnership or limited liability company or other entity in which CCRC (or an affiliate of CCRC) is the sole managing general partner, managing member or manager and in which all other partners or members, as applicable, are banks, insurance companies or other financial institutions (or affiliates thereof) who are QIBs. -3- The term “Assignment of Deed of Trust” means the Assignment of Deed of Trust and Loan Documents, dated as of December 1, 2016, by the Issuer to the Bondowner Representative. The term “Authorized Amount” shall mean ____________ Million Dollars ($__________), the authorized maximum principal amount of the Bonds. The term “Authorized Borrower Representative” shall mean any person who at the time and from time to time may be designated as such, by written certificate furnished to the Issuer and the Bondowner Representative containing the specimen signature of such person and signed on behalf of the Borrower by the President (or other designated officer) of the member and manager of the Managing General Partner of the Borrower, which certificate may designate an alternate or alternates. The term “Authorized Denomination” means $250,000 or any integral multiple thereof, provided that in any event one Bond may be in a denomination equal to the outstanding principal amount of the Bonds. The term “Authorized Participant” means (a) a bank that purchases a participation interest in the Bonds and delivers to the Issuer an investor’s letter in the form of Exhibit B hereto; or (b) with respect to CCRC (or its affiliate) as holder of the Bonds, a member bank of CCRC that is an Approved Institutional Buyer or another permitted transferee under Section 2.05(b)(ii). The term “Authorized Issuer Representative” shall mean the Chair or Vice Chair of the Board of Supervisors of the Issuer, or the Issuer’s County Administrator, Director of the Department of Conservation and Development, Assistant Deputy Director of Conservation and Development, or Community Development Bond Program Manager, and any other officer or employee of the Issuer designated to act in such capacity by a Certificate of the Issuer containing the specimen signature of either of such persons, which certificate may designate an alternate or alternates. The term “Bond Counsel” shall mean (a) Quint & Thimmig LLP, or (b) any attorney at law or other firm of attorneys selected by the Borrower and acceptable to the Issuer of nationally recognized standing in matters pertaining to the federal tax status of interest on bonds issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America, but shall not include counsel for the Borrower. The term “Bond Documents” has the meaning given to such term in the Loan Agreement. The term “Bond Fund” shall mean the fund established pursuant to Section 5.02 hereof. The term “Bond Purchase Agreement” means the Bond Purchase Agreement, dated as of December 1, 2016, among CCRC, the Borrower and Wells Fargo Bank, National Association, as executed and as it may be amended in accordance with its terms. -4- The term “Bondowner Representative” shall mean (a) initially, Wells Fargo Bank, National Association, a national banking association organized under the laws of the United States of America, and, pursuant to Section 8.07, on and after the Conversion Date, CCRC (or its affiliate); (b) any successor to any then Bondowner Representative under Section 8.08 hereof; or (c) subject to the provisions of Section 8.07, any other entity that is the owner of a majority in principal amount of the Bonds then outstanding or a person selected by the owners of a majority in principal amount of the Bonds then outstanding. The term “Bonds” shall mean the County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E, issued and outstanding hereunder. The term “Borrower” shall mean El Cerrito Senior, L.P., a California limited partnership, and its successors and assigns under the provisions of the Loan Agreement. The term “Business Day” shall have the meaning given to such term in the Loan Agreement. The term “CCRC” means the California Community Reinvestment Corporation, and its successors. The term “Certificate of the Issuer” shall mean a certificate of the Issuer signed by an Authorized Issuer Representative. The term “Certified Resolution” shall mean a copy of a resolution of the Issuer certified by the Clerk of the Board of Supervisors of the Issuer, or any Deputy thereof, to have been duly adopted by the Issuer and to be in full force and effect on the date of such certification. The term “Closing Date” means December __, 2016, being the date of initial delivery of the Bonds and the funding by the initial owner of the Bonds of the Initial Disbursement. The term “Code” means the Internal Revenue Code of 1986 as in effect on the date of issuance of the Bonds or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the date of issuance of the Bonds, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code. The term “Conversion Date” means the date on which the registered owner of the outstanding Bonds becomes CCRC by reason of its purchase pursuant to the terms and conditions of the Bond Purchase Agreement of all of the Bonds that remain outstanding on such date. The term “Debt Service” means the scheduled amount of interest and amortization of principal payable on the Bonds during the period of computation, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. -5- The term “Deed of Trust” shall mean the Construction and Permanent Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing, executed by the Borrower in favor of the Issuer and Wells Fargo Bank, National Association, and assigned by the Issuer to the Bondowner Representative, for the purpose of securing the obligations of the Borrower under the Loan Agreement and the Note, as such deed of trust may be originally executed or as it may be from time to time supplemented and amended. The term “Default Rate” means the interest rate then in effect on the Bonds plus five percent (5%). The term “Event of Default” as used herein other than with respect to defaults under the Loan Agreement shall have the meaning specified in Section 7.01 hereof, and as used in the Loan Agreement shall have the meaning given to the term “Default” in Section 13.1 thereof. The term “Fair Market Value” means the price at which a willing buyer would purchase the investment from a willing seller in a bona fide, arm’s length transaction (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established securities market (within the meaning of section 1273 of the Code) and, otherwise, the term “Fair Market Value” means the acquisition price in a bona fide arm’s length transaction (as referenced above) if (a) the investment is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (b) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, (c) the investment is a United States Treasury Obligation-State Local Government Series that is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (d) the investment is the Local Agency Investment Fund of the State of California but only if at all times during which the investment is held its yield is reasonably expected to be equal to or greater than the yield on a reasonably comparable direct obligation of the United States. The term “Holder,” “holder” or “Bondholder” or “owner” or “Bondowner” shall mean the person in whose name any Bond is registered. The term “Indenture” shall mean this Indenture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any supplemental indenture entered into pursuant to the provisions hereof. The term “Initial Disbursement” means the initial advance of the proceeds of the Bonds on the Closing Date in an amount specified in a Receipt for the Note and Acknowledgement of Initial Funding of Bonds executed and delivered by the initial owner of the Bonds on the Closing Date. The term “Interest Payment Date” shall mean the first Business Day of each month, commencing January 2, 2017. -6- The term “Investment Securities” shall mean any of the following (including any funds comprised of the following, which may be funds maintained or managed by the Bondowner Representative and its affiliates), but only to the extent that the same are acquired at Fair Market Value: (a) United States Treasury notes, bonds, bills, or those for which the full faith and credit of the United States, its agencies, its instrumentalities, or organizations created by an act of Congress, are pledged for the payment of principal and interest (including State and Local Government Series); (b) shares of an investment company (1) registered under the Federal Investment Company Act of 1940, whose shares are registered under the Federal Securities Act of 1933, (2) whose only investments are in (i) securities described in the preceding clause (a), (ii) general obligation tax-exempt securities rated A or better by the Rating Agency, or (iii) repurchase agreements or reverse repurchase agreements fully collateralized by those securities if the repurchase agreements or reverse repurchase agreements are entered into only with those primary reporting dealers to report to the Federal Reserve Bank of New York and with the 100 largest United States commercial banks, and (3) which are rated Am or Am-g or better by the Rating Agency; (c) any security which is a general obligation of any state or any local government with taxing powers which is rated A or better by the Rating Agency; (d) commercial paper issued by United States corporations or their Canadian subsidiaries that is rated A-1 by the Rating Agency and matures in 270 days or less; or (e) any other investment approved in writing by the Bondowner Representative. The term “Investor Limited Partner” means Wells Fargo Affordable Housing Community Development Corporation, a North Carolina corporation, its affiliates, successors and assigns. The term “Issuance Costs” means all costs and expenses of issuance of the Bonds, including, but not limited to: (a) Bond purchaser’s discount and fees; (b) counsel fees, including Bond Counsel and Borrower’s counsel, as well as any other specialized counsel fees incurred in connection with the issuance of the Bonds or the Loan; (c) the Issuer’s fees and expenses incurred in connection with the issuance of the Bonds, including fees of any counsel or financial advisor to the Issuer, and the Issuer administrative fee for processing the request of the Borrower to issue the Bonds; (d) Bondowner Representative’s fees and Bondowner Representative’s counsel fees and expenses; (e) paying agent’s and certifying and authenticating agent’s fees related to issuance of the Bonds; (f) accountant’s fees related to issuance of the Bonds; (g) publication costs associated with the financing proceedings; and (h) costs of engineering and feasibility studies necessary to the issuance of the Bonds. The term “Issuer” shall mean the County of Contra Costa, California, the issuer of the Bonds under this Indenture, its successors and assigns as provided in Section 11.01. -7- The term “Loan” shall mean the loan made by the Issuer to the Borrower pursuant to the Loan Agreement for the purpose of financing the construction by the Borrower of the Project. The term “Loan Agreement” shall mean the Agreement, as defined herein. The term “Loan Documents” has the meaning given such term in the Loan Agreement. The term “Loan Purchaser” shall mean the purchaser of the Loan under the Loan Purchase Option. The term “Loan Purchase Option” shall have the meaning given such term in Section 1.6 of the Bond Purchase Agreement. The term “Note” means the promissory note evidencing the Loan, in the form required by the Loan Agreement. The term “Opinion of Counsel” shall mean a written opinion of counsel, who may be counsel for the Issuer, Bond Counsel or counsel for the Bondowner Representative. The term “outstanding”, when used as of any particular time with reference to Bonds, shall, subject to the provisions of Section 11.08(e), mean all Bonds theretofore authenticated and delivered by the Bondowner Representative under this Indenture except: (a) Bonds theretofore canceled by the Bondowner Representative or surrendered to the Bondowner Representative for cancellation; (b) Bonds for the payment or redemption of which moneys or securities in the necessary amount (as provided in Section 10.01) shall have theretofore been deposited with the Bondowner Representative (whether upon or prior to the maturity or the redemption date of such Bonds); and (c) Bonds in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Bondowner Representative pursuant to the terms of Section 2.05. The term “Person” or “person” shall mean an individual, a corporation, a partnership, a limited liability company, a limited liability partnership, a limited partnership, a trust, an unincorporated organization or a government or any agency or political subdivision thereof. The term “Premium” means a premium payable on the Bonds in an amount equal to any premium payable on the Note. The term “Principal Office” shall mean the office of the Bondowner Representative located at the address set forth in Section 11.06 hereof, or at such other place as the Bondowner Representative shall designate by notice given under said Section 11.06. -8- The term “Program Fund” shall mean the fund established pursuant to Section 3.03 hereof. The term “Project” means, collectively, the 63 units of rental housing to be constructed by the Borrower with the proceeds of the Loan, to be located at 10860 San Pablo Avenue in the City of El Cerrito, California, including structures, buildings, fixtures or equipment, as it may at any time exist, and any structures, buildings, fixtures or equipment acquired in substitution for, as a renewal or replacement of, or a modification or improvement to, all or any part of such facilities, and a fee interest in the land on which such housing is situated. The term “Project Costs” has the meaning given such term in the Loan Agreement. The term “Qualified Project Costs” has the meaning given such term in the Regulatory Agreement. The term “Rating Agency” shall mean S&P Global Ratings, or its successors and assigns or, if such entity shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other nationally recognized rating agency designated by the Issuer. The term “Regulations” means the Income Tax Regulations promulgated or proposed by the Department of the Treasury pursuant to the Code from time to time or pursuant to any predecessor statute to the Code. The term “Regulatory Agreement” shall mean the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of December 1, 2016, by and between the Issuer and the Borrower as in effect on the Closing Date and as thereafter amended in accordance with its terms. The term “Reserved Rights” shall mean the Issuer’s rights to enforce and receive payments of money directly and for its own purposes under Sections 2.3(a), 2.3(d), 2.3(f), 3.3(g)(i), 3.3(g)(iii), 3.3(h), 3.4, 3.17, 4.10, 8.2, 8.3, 11.38, 11.39, 11.40, 11.41, 11.44, 15.24 and 15.31 of the Loan Agreement, the Issuer’s rights to inspect and audit the books, records and premises of the Borrower and of the Project, its right to collect attorneys’ fees and related expenses, its right to enforce the Borrower’s covenants to comply with applicable federal tax law and California law (including the Act and the rules and regulations of the Issuer), its right to receive notices and to grant or withhold consents or waivers under the Loan Agreement, the Regulatory Agreement and this Indenture, its rights to indemnification by the Borrower under the Loan Agreement and the Regulatory Agreement, and its right to amend this Indenture, the Loan Agreement and the Regulatory Agreement in accordance with the provisions hereof and thereof. The term “Responsible Officer” of the Bondowner Representative shall mean any officer of the Bondowner Representative assigned to administer its duties hereunder. The term “Revenues” shall mean all amounts pledged hereunder to the payment of principal of, Premium, if any, and interest on the Bonds, including, but not limited to, any repayments of the Loan required or permitted to be made by the Borrower pursuant to Sections -9- 3.3(a), (b), (c), (d) and (f), 3.5, and 3.8(a) and (b) of the Loan Agreement; but such term shall not include payments to the United States, the Issuer, the Administrator or the Bondowner Representative pursuant to Sections 2.3, 3.3(e), (g) and (h), 3.4, 3.6(c), 3.7(c), 3.11, 3.12, 3.17, 9.5, 11.2, 11.38, 11.39, 11.41, 11.44(c), 13.6, 15.1 or 15.10 of the Loan Agreement or Sections 6.08 or 8.06 hereof or Sections 4A, 7 or 17 of the Regulatory Agreement. The term “supplemental indenture” or “indenture supplemental hereto” shall mean any indenture hereafter duly authorized and entered into between the Issuer and the Bondowner Representative in accordance with the provisions of this Indenture. The term “Tax Certificate” means the Certificate as to Arbitrage of the Borrower and the Issuer dated the Closing Date. The terms “Written Consent”, “Written Demand”, “Written Direction”, “Written Election”, “Written Notice”, “Written Order”, “Written Request” and “Written Requisition” of the Issuer or the Borrower shall mean, respectively, a written consent, demand, direction, election, notice, order, request or requisition signed on behalf of the Issuer by an Authorized Issuer Representative, or on behalf of the Borrower by an Authorized Borrower Representative. Section 1.02. Rules of Construction. (a) The singular form of any word used herein, including the terms defined in Section 1.01, shall include the plural, and vice versa, unless the context otherwise requires. The use herein of a pronoun of any gender shall include correlative words of the other genders. (b) All references herein to “Articles”, “Sections” and other subdivisions hereof are to the corresponding Articles, Sections or subdivisions of this Indenture as originally executed; and the words “herein”, “hereof”, “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof. (c) The headings or titles of the several Articles and Sections hereof, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Indenture. ARTICLE II THE BONDS Section 2.01. Authorization. There are hereby authorized to be issued bonds of the Issuer designated as “County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E” in the initial aggregate principal amount of up to the Authorized Amount. No Bonds may be issued hereunder except in accordance with this Article. The maximum aggregate principal amount of Bonds which may be issued and outstanding under this Indenture shall not exceed the Authorized Amount. Section 2.02. Terms of Bonds. The Bonds shall be in substantially the form set forth in Exhibit A hereto with necessary or appropriate variations, omissions and insertions as permitted or required by this Indenture, including any supplemental indenture. -10- The Bonds shall be issuable only as fully registered Bonds, without coupons, in the form of a single Bond in the principal amount equal to the aggregate of the purchase price of the Bonds advanced from time to time by the owners of the Bonds (which principal amount shall be, on the Closing Date, equal to the amount of the Initial Disbursement, and with any subsequent advances subject to the provisions of Section 3.03(e)). The Bonds shall be dated the Closing Date, shall mature on __________ 1, 2042, and shall be subject to redemption prior to maturity as provided in Article IV. The Bonds may be transferred in Authorized Denominations, subject to the provisions of Section 2.05. The Bonds shall bear interest on the principal amount of the Bonds outstanding, payable on each Interest Payment Date, at the same rate of interest in effect from time to time on the Note, computed in the same manner as interest is computed from time to time on the Note. The principal of the Bonds shall be payable in installments on the same dates and in the same amounts as is the principal payable on the Loan, as evidenced by the Note. Each Bond shall bear interest from the date to which interest has been paid on the Bonds next preceding the date of its authentication, unless it is authenticated as of an Interest Payment Date for which interest has been paid, in which event it shall bear interest from such Interest Payment Date, or unless it is authenticated on or before the first Interest Payment Date, in which event it shall bear interest from the Closing Date. The payment or prepayment of principal of and interest or Premium, if any, on the Bonds shall be identical with and shall be made on the same terms and conditions as the principal of and interest or premium, if any, on the Note, as determined in accordance with the Loan Agreement. Any payment or prepayment made by the Borrower of principal and interest or premium, if any, on the Note shall be deemed to be like payments or prepayments of principal and interest or Premium, if any, on the Bonds. Payments or prepayments actually made by the Borrower to the Bondowner Representative shall be deemed to have been constructively received by the Holder(s) as payments or prepayments on the Bonds on the date of receipt of such payments by the Bondowner Representative, and interest with respect to each principal payment or prepayment shall cease to accrue upon receipt of such payment by the Bondowner Representative. Payments or prepayments of principal, interest or Premium, if any, shall be remitted immediately by the Bondowner Representative to the Holder(s). The Issuer hereby acknowledges that the Borrower is obligated to pay late fees and other charges (including without limitation prepayment penalties) under the Note (and as otherwise provided in the Loan Documents) to the Bondowner Representative, which amounts are paid for the benefit of the Bondowner Representative and shall be retained by the Bondowner Representative for its own account and shall not be construed in any event to be interest on the Bonds. Section 2.03. Payment of Bonds. Payment of the principal of and interest on any Bond shall be made in lawful money of the United States to the person appearing on the Bond registration books of the Issuer (maintained by the Bondowner Representative) as the registered -11- owner thereof on the applicable Interest Payment Date, such principal and interest to be paid by check mailed on the Interest Payment Date by first class mail, postage prepaid, to the registered owner at its address as it appears on such registration books, except that the Bondowner Representative may, at the request of any registered owner of Bonds, make payments of principal and interest on such Bonds by wire transfer to the account within the United States designated by such owner to the Bondowner Representative in writing, any such designation to remain in effect until withdrawn in writing. Section 2.04. Execution of Bonds. The Bonds shall be signed in the name and on behalf of the Issuer with the manual or facsimile signature of an Authorized Issuer Representative. The Bonds shall then be delivered to the Bondowner Representative for authentication by the Bondowner Representative. In case any person who shall have signed any of the Bonds shall cease to be an Authorized Issuer Representative before the Bonds so signed shall have been authenticated or delivered by the Bondowner Representative or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issuance, shall be as binding upon the Issuer as though the person who signed the same had continued to be an Authorized Issuer Representative. Also, any Bond may be signed on behalf of the Issuer by such person as on the actual date of the execution of such Bond shall be an Authorized Issuer Representative although on the nominal date of such Bond any such person shall not have been an Authorized Issuer Representative. Only such of the Bonds as shall bear thereon a certificate of authentication in the form set forth in Exhibit A, manually executed by the Bondowner Representative, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture and such certificate of the Bondowner Representative shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Section 2.05. Transfer of Bonds; Condition to Conversion Date. (a) Any Bond may, in accordance with the terms of this Indenture but in any event subject to the provisions of Section 2.05(b) hereof, be transferred upon the books of the Bondowner Representative, required to be kept pursuant to the provisions of Section 2.06, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation at the Principal Office of the Bondowner Representative, accompanied by a written instrument of transfer in a form acceptable to the Bondowner Representative, duly executed. Whenever an y Bond shall be surrendered for transfer, the Issuer shall execute and the Bondowner Representative shall authenticate and deliver a new Bond. (b) The following shall apply to all sales and transfers of the Bonds after the initial sale and delivery of the Bonds: (i) the Bonds, in the form attached hereto as Exhibit A, shall be physical certificated instruments, and shall not be held in a book-entry only system unless approved in advance in writing by (A) all of the then Bondowners, in their discretion, (B) the Issuer in its discretion, and (C) the Bondowner Representative in its discretion; -12- (ii) the Bonds shall only be transferred in Authorized Denominations, and only to (A) an entity that is an Approved Institutional Buyer, (B) an affiliate of the Bondowner Representative or a trust or custodial arrangement established by the Bondowner Representative or one of its affiliates, the owners of the beneficial interests in which are required to be Approved Institutional Buyers or other permitted transferees of the Bonds under this Section 2.05(b)(ii) who execute an investor’s letter substantially in the form of Exhibit B hereto or otherwise satisfy the requirements of Section 2.05(e) below, or (C) CCRC; (iii) each transferee of the Bonds shall deliver to the Issuer an investor’s letter substantially in the form of Exhibit B hereto wherein the transferee agrees, among other matters, not to sell participating interests in the Bonds without the prior written consent of the Issuer, except as permitted by Section 2.05(e) hereof; (iv) unless otherwise approved by the Issuer in its discretion, there shall be no more than five (5) different Bondowners at any one time; and (v) the Bondowner Representative shall not authenticate or register a Bond unless the conditions of this Section 2.05(b) have been satisfied. Except as provided in Section 4.04, the Bondowner Representative shall not allow any transfer of the Note or the Loan, or any interest or interests therein, except in connection with a transfer of a like amount of the Bonds or an interest or interests in the Bonds. (c) The Bondowner Representative shall require the payment by the Bondholder requesting any such transfer of any tax, fee or other governmental charge required to be paid with respect to such transfer, but any such transfer shall otherwise be made without charge to the Bondholder requesting the same. The cost of printing any Bonds and any services rendered or any expenses incurred by the Bondowner Representative in connection therewith shall be paid by the Borrower. (d) The Bondowner Representative shall indemnify and defend the Issuer against any claim brought by any transferor or transferee of the Bonds in respect of the Bonds, this Indenture or any of the Loan Documents in the event that the Bondowner Representative permits a transfer of the Bonds in violation of the restrictions in Sections 2.05(b) above. (e) Notwithstanding the foregoing provisions of this Section 2.05, an owner of the Bonds may, in its discretion, sell participation interests in the Bonds that it owns, so long as (i) any such sale is only made to an affiliate of the Bondowner, to an Approved Institutional Buyer or to another person to whom the Bonds may be sold directly pursuant to Section 2.05(b)(ii) above, and (ii) the document or documents relating to the sale contain a provision to the effect that the buyer understands that it has no rights whatsoever against the Issuer in respect of any such interest in any Bond, with the Issuer’s obligations hereunder and under the Bond b eing only to the registered owner of the applicable Bond. The owner of the Bond in which a participation is sold shall indemnify and hold harmless the Issuer from any claim or action whatsoever against the Issuer in any way related to the Bonds, this Indenture or the Loan Documents brought by any entity to which it sold an interest in the Bonds. In no case shall a purchaser of a -13- participation interest in any Bond be deemed to be a Holder of the Bonds, or have any rights of a Holder of the Bonds or of the Bondowner Representative hereunder. Section 2.06. Bond Register. The Issuer hereby appoints the Bondowner Representative as registrar and authenticating agent for the Bonds. The Bondowner Representative will keep or cause to be kept at its Principal Office sufficient books for the registration and transfer of the Bonds, which shall at all reasonable times during regular business hours upon reasonable notice be open to inspection by the Issuer and the Borrower; and, upon presentation for such purpose, the Bondowner Representative as registrar shall, under such reasonable regulations as it may prescribe, transfer or cause to be transferred, on said books, Bonds as hereinbefore provided. Section 2.07. Replacement of Bonds. Upon receipt of evidence reasonably satisfactory to the Issuer of the loss, theft, destruction or mutilation of any of the Bonds, or of any replacement Bonds, and, in the case of any such loss, theft, or destruction, upon the delivery of an indemnity agreement reasonably satisfactory to the Issuer or, in the case of any mutilation, upon the surrender and cancellation of such mutilated Bond, the Issuer, at the expense of the Holder of such Bond, will issue and the Bondowner Representative will authenticate a new Bond, of like tenor and series, in lieu of such lost, destroyed or mutilated Bond. ARTICLE III ISSUANCE OF BONDS; APPLICATION OF PROCEEDS Section 3.01. Authentication and Delivery of the Bonds. Upon the execution and delivery of this Indenture, the Issuer shall execute the Bonds and deliver them to the Bondowner Representative. Thereupon, and upon satisfaction of the conditions set forth in this Section, and without any further action on the part of the Issuer, the Bondowner Representative shall authenticate the Bonds in an aggregate principal amount not exceeding the Authorized Amount, and shall deliver them pursuant to the Written Order of the Issuer hereinafter mentioned. Prior to the authentication and delivery of any of the Bonds by the Bondowner Representative, there shall have been delivered to the Bondowner Representative each of the following: (a) a Certified Resolution authorizing issuance and sale of the Bonds and execution and delivery by the Issuer of the Indenture, the Loan Agreement and the Regulatory Agreement; (b) original executed counterparts of this Indenture, the Regulatory Agreement, the Tax Certificate, the Loan Agreement, the Deed of Trust, the Assignment of Deed of Trust and all of the other Loan Documents, all in form and content satisfactory to the Bondowner Representative, and the original executed Note endorsed without recourse by the Issuer to the Bondowner Representative; (c) a Written Order of the Issuer to the Bondowner Representative to authenticate and deliver the Bonds as directed in such Written Order, upon payment to the Bondowner Representative, for the account of the Issuer, of the Initial Disbursement; -14- (d) a letter in the form of Exhibit B hereto executed by the initial Bondowner; (e) an opinion of Bond Counsel with respect to the due execution and delivery of the Indenture, the Loan Agreement and the Bonds and the exclusion from gross income of the Bondowners of interest on the Bonds for federal income tax purposes; and (f) an opinion of counsel to the Borrower addressed to the Issuer to the effect that the Loan Documents to which the Borrower is a party and the Regulatory Agreement are valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their terms, subject to such exceptions and qualifications as are acceptable to the Issuer. Section 3.02. Application of Proceeds of Bonds. The proceeds received on the Closing Date by the Issuer from the sale of the Bonds shall be deposited with the Bondowner Representative, who shall deposit any portion of such proceeds which are not to be concurrently disbursed to or for the account of the Borrower into the Program Fund created pursuant to Section 3.03. The Bondowner Representative shall deposit any portion of any future advance of the purchase price of the Bonds which is not to be concurrently disbursed to or for the account of the Borrower into the Program Fund. Section 3.03. Program Fund. (a) There is hereby created and established with the Bondowner Representative a fund which shall be designated the “Program Fund.” Upon the initial delivery of the Bonds, there shall be deposited in the Program Fund the amount specified in Section 3.02. If required under the provisions of Section 3.02, the Bondowner Representative shall deposit any future advances of the purchase price of the Bonds to the Program Fund. Amounts deposited or held in such fund shall be applied only as provided in this Section. (b) The Initial Disbursement deposited in the Program Fund on the Closing Date shall be disbursed by the Bondowner Representative to or upon the order of the Borrower to pay Project Costs. (c) The Issuer hereby authorizes and directs the disbursement by the Bondowner Representative to the Borrower of the remaining principal amount of the Bonds represented by future advances of the purchase price of the Bonds and any amounts from time to time on deposit in the Program Fund upon receipt by the Bondowner Representative of a written request of the Borrower, accompanied by the documents required under the Loan Agreement, and a determination of the Bondowner Representative that the conditions to disbursement contained in the Loan Agreement have been satisfied or waived. (d) Neither the Bondowner Representative nor the Issuer shall be responsible for the application by the Borrower of monies disbursed to the Borrower in accordance with this Section 3.03. (e) Notwithstanding any other provision of this Indenture, unless otherwise approved in an opinion of Bond Counsel addressed to the Issuer and the Bondowner Representative to the effect that some other advance of the purchase price of the Bonds will not adversely effect -15- the exclusion of interest on the Bonds from federal income taxation, all advances of the purchase price of, or disbursements of the proceeds of the Bonds, shall occur on or before the earlier of the Conversion Date or November 1, 2019. (f) During the period when the Bondowner Representative and/or its affiliates are the Holders of all of the Bonds, the Program Fund need not be separately established or administered but rather the Bondowner Representative may hold and administer any amounts to be deposited in such fund in the manner it customarily employs for administration and servicing of amounts to be loaned to borrowers, so long as at all times the Bondowner Representative can determine the amounts attributable to the Bonds and the Loan and any investment earnings thereon. ARTICLE IV REDEMPTION OF BONDS Section 4.01. Circumstances of Redemption. The Bonds are subject to redemption upon the circumstances, on the dates and at the prices set forth as follows: (a) The Bonds shall be subject to redemption in whole or in part on any date that the Note is subject to prepayment, at a price equal to the principal amount of Bonds to be redeemed plus interest accrued thereon to the date fixed for redemption, plus a Premium equal in amount to any premium payable pursuant to the Note in connection with the related prepayment of the Note (as required or permitted under the terms of the Note), upon and in an amount equal to any such prepayment of the principal of the Note in whole or in part. (b) The Bonds shall be subject to redemption in whole on any date at a price equal to the principal amount of Bonds to be redeemed plus interest accrued thereon to the date fixed for redemption, plus a Premium equal in amount to any premium paid in connection with the prepayment of the Note (as required under the terms of the Note), upon the occurrence of a Default under and as defined in the Loan Agreement and a written request of the Bondowner Representative that a redemption in full of the Bonds occur. (c) The Bonds shall be subject to redemption in part, at a price equal to the principal amount of Bonds to be redeemed plus interest accrued thereon to the date fixed for redemption, without premium, upon and in the amount of any scheduled payment of principal of the Note. The Bondowner Representative is hereby authorized and directed, and hereby agrees, to fix the date for any such redemption, and, if Revenues are available, to redeem the Bonds so called on the date so fixed by the Bondowner Representative. If there is more than one Bondowner of a Bond to be redeemed in part as of any date of redemption, the Bonds shall be redeemed pro rata among the Bondowners. So long as there is only one Bondowner, the Bondowner need not surrender its Bond in connection with any redemption of the Bonds. -16- Section 4.02. No Notice of Redemption. No notice of redemption of the Bonds need be given to the owners of the Bonds to be redeemed. However, the Bondowner Representative shall notify the Issuer in writing of the redemption of any of the Bonds, except that no such notice shall be required for any scheduled redemption described in Section 4.01(c). Section 4.03. Effect of Redemption. Moneys for payment of the redemption price of Bonds being held by the Bondowner Representative, the Bonds so called for redemption shall, on the redemption date selected by the Bondowner Representative, become due and payable at the redemption price specified herein, interest on the Bonds so called for redemption shall cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and the holders of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof. All Bonds fully redeemed pursuant to the provisions of this Article IV shall be destroyed by the Bondowner Representative, which shall thereupon deliver to the Issuer, upon the Issuer’s written request, a certificate evidencing such destruction. Section 4.04. Assignment of Loan and Tender of Bonds. (a) Notwithstanding anything to the contrary in the Bonds or this Indenture, the Bonds shall be subject to optional tender for cancellation by the owner of the Bonds in accordance with the provisions of this Section 4.04. (b) Upon receipt by the Bondowner of notice by the Loan Purchaser of its election to exercise the Loan Purchase Option, the Bondowner shall provide written notice to the Issuer and the Borrower, in the manner specified in Section 11.06 of this Indenture, at least 30 days prior to the specified tender date (“Tender Notice”), of its election to tender for cancellation the outstanding Bonds as of such date (the “Tender Date”) and to transfer all of its right, title and interest in, to and under the Note, the Deed of Trust and the other Loan Documents to the Loan Purchaser on the Tender Date (the “Loan Purchase”). (c) On the Tender Date, Bonds tendered for cancellation pursuant to Section 4.04(b) (but not the Note, the Deed of Trust or the other Loan Documents) shall be deemed paid in full and retired and shall be cancelled on the books of the Bondowner Representative, upon surrender of the Bonds to the Bondowner Representative. On the Tender Date, this Indenture shall be terminated in accordance with Section 10.01 of this Indenture, subject to any indemnification or other rights expressly intended to survive termination as set forth in this Indenture. On the Tender Date, the Issuer, the Bondowner Representative and the Bondowner shall transfer all of their respective right, title and interest in, to and under the Note, the Deed of Trust and the other Loan Documents to the Loan Purchaser. Upon such Loan Purchase, cancellation of the Bonds, and termination of the Indenture, the Issuer and the Bondowner Representative shall have no further interest in the Loan or the Loan Documents, subject to any indemnification or other rights expressly intended to survive termination as set forth in the Loan Documents, including without limitation (i) all of the rights and interests of the Issuer under the Regulatory Agreement, which shall remain in full force and effect in accordance with its terms and (ii) rights to indemnification, to the payment of fees and expenses, to the computation and payment of rebate with respect to the Bonds, and with respect to post-issuance compliance -17- under the Tax Certificate. To effect the foregoing, the Bondowner Representative and the Issuer shall execute and deliver such assignments as are reasonably required by the Loan Purchaser. The Issuer and the Bondowner Representative shall take such other actions as may be reasonably requested by the Loan Purchaser in order to effect the Loan Purchase, and the cancellation of the Bonds and the termination of the Indenture in connection therewith, in accordance with this Section. (d) At any time prior to the Tender Date, at the written request of the Bondowner and the Loan Purchaser, delivered to the Issuer, the Bondowner Representative and the Borrower, given in the same manner as the Tender Notice, the Tender Notice may be cancelled and rescinded, provided that Borrower shall still be responsible for any expenses of the Issuer or the Bondowner Representative incurred pursuant to the Tender Notice. (e) It is expressly acknowledged that the Loan Purchaser is an intended third party beneficiary of this Indenture, and is thereby entitled to enforce the provisions of this Section 4.04. (f) All expenses of the Issuer in complying with this Section 4.04 shall be paid by the Borrower. ARTICLE V REVENUES Section 5.01. Power to Issue Bonds; Pledge of Revenues. The Issuer is duly authorized pursuant to law to issue the Bonds and to enter into this Indenture and to pledge and assign the Revenues and other assets purposed to be pledged and assigned, respectively, under this Indenture in the manner and to the extent provided in this Indenture. The Issuer has duly authorized the execution and delivery of the Bonds and the Indenture under the terms and provisions of the Act and a resolution adopted by the Board of Supervisors of the Issuer and further represents, covenants and warrants that all requirements have been met and procedures have occurred in order to ensure the enforceability against the Issuer of the Bonds and the Indenture. The Issuer has taken all necessary action and has complied with all provisions of the Act required to make the Bonds and this Indenture the valid, legal and binding limited obligations of the Issuer. All of the Revenues are hereby irrevocably pledged to the punctual payment of the principal of and interest and any premium on the Bonds. The Issuer also hereby irrevocably transfers, grants a security interest in and assigns to the Bondowner Representative, for the benefit of the holders from time to time of the Bonds all of its right, title and interest in (a) the Revenues, (b) all other amounts payable to Issuer under, or pursuant to, the Note and the other Loan Documents, including but not limited to all proceeds of any title insurance policy, casualty insurance policy or other insurance policy, all proceeds of any condemnation or other taking and all revenues, proceeds, payments and other amounts received from any foreclosure (or action in lieu of foreclosure) or other enforcement action taken pursuant to the Deed of Trust or any other Loan Document (other than the Reserved Rights); (c) all amounts from time to time on deposit in any fund or account created hereunder, under the Loan Agreement or under any -18- other Loan Document and held by the Bondowner Representative; (d) the Deed of Trust; (e) the Loan Agreement (except for the Reserved Rights); (f) the Note; (g) the other Loan Documents; (h) any other amounts or agreements referenced in the Loan Agreement as security for the repayment of the Bonds; and (i) all proceeds of the foregoing, whether voluntary or involuntary; provided, however, that any amounts or payments specifically excluded from the definition “Revenues” in Section 1.01 hereof shall not be pledged, in any case, to the payment of the Bonds under this Section 5.01. Any Revenues which are collected or received by the Issuer shall be deemed to be held, and to have been collected or received, by the Issuer as the agent of the Bondowner Representative, and shall forthwith be paid by the Issuer to the Bondowner Representative. The Issuer hereby acknowledges and agrees that, as a result of the assignment and pledge provided for in this Section 5.01, the Issuer has assigned and pledged to Bondowner Representative, and Bondowner Representative shall have the sole right to hold and exercise, all of the rights and remedies given to Issuer under the Loan Agreement, the Note, the Deed of Trust and the other Loan Documents (except for the Reserved Rights and as expressly set forth in the Regulatory Agreement, which allows the Issuer to independently pursue remedies thereunder), including, but not limited to, the following: (i) the right to administer and service the Loan and to amend, modify, supplement, terminate, release and/or reconvey the Loan and any of the Loan Documents (except that the Bondowner Representative (A) may not in any way alter the provisions of the Loan Agreement pertaining to the Reserved Rights without the written consent of the Issuer, and (B) the Bondowner Representative shall notify the Issuer in writing of any amendment, modification, supplement, termination, release or reconveyance of any material provision of the Loan or the Loan Agreement); (ii) the right to enforce the terms and provisions of the Loan Documents; (iii) the right to record and/or file all documents, instruments and agreements which Bondowner Representative deems necessary or desirable to create, preserve, protect and/or release the liens created by the Deed of Trust and the other Loan Documents; and (iv) the right to collect, hold and disburse amounts to be collected, held and/or disbursed under the Loan Documents, including, but not limited to, principal, interest, prepayment premiums, fees (other than fees payable to the Issuer), default interest, late payment charges, real estate tax impounds, insurance impounds, operating reserve deposits, replacement reserve deposits, title insurance proceeds, casualty insurance proceeds, other insurance proceeds, condemnation and other taking awards and proceeds and other amounts. All Revenues and all amounts on deposit in the funds and accounts created hereunder, under the Loan Agreement or under any of the other Loan Documents and held by the Bondowner Representative shall be held for the benefit of the holders from time to time of the Bonds, but shall nevertheless be disbursed, allocated and applied solely for the uses and purposes hereinafter set forth in this Article V. The Bonds are limited obligations of the Issuer, payable solely from and secured by the pledge of the Revenues hereunder. None of the Issuer, the City of El Cerrito or the State of California or any of its political subdivisions shall be directly, indirectly, contingently or morally obligated to use any other moneys or assets to pay all or any portion of the debt service due on the Bonds, to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment. The Bonds are not a pledge of the faith and credit of the Issuer, the City of El Cerrito or the State of California or any of its political subdivisions nor do -19- they constitute indebtedness within the meaning of any constitutional or statutory debt limitation. The Issuer shall not be liable for payment of the principal of Premium, if any, redemption price or interest on the Bonds or any other costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reason of or in connection with this Indenture, the Bonds or any other documents, except only to the extent amounts are received for the payment thereof from the Borrower under the Note, the Loan Agreement or any of the other Loan Documents. Section 5.02. Bond Fund. There is hereby created and established with the Bondowner Representative a separate fund which shall be designated the “Bond Fund,” which fund shall be applied only as provided in this Section. The Bondowner Representative shall deposit in the Bond Fund from time to time, upon receipt thereof, all Revenues, including (i) income received from the investment of moneys on deposit in the Bond Fund, and (ii) any other Revenues, including insurance proceeds, condemnation awards and other Loan payments or prepayments received from or for the account of the Borrower. The Bondowner Representative shall provide notice to the Issuer, upon written request of the Issuer, of the amounts received by the Bondowner Representative which constitute Revenues or are otherwise deposited to the Bond Fund, and of any failure by the Borrower to make timely payments on the Note. Moneys in the Bond Fund shall be used solely for the payment of the principal of and Premium, if any, and interest on the Bonds as the same shall become due, whether at maturity or upon redemption or acceleration or otherwise. On each date on which principal of or interest on the Bonds is due and payable, the Bondowner Representative shall pay such amount from the Bond Fund. Notwithstanding any other provision of this Indenture, to the extent that there is only one Bondowner, any payment on the Note from the Borrower to the Bondowner Representative shall be deemed to be a payment by the Issuer on the Bonds, and there shall be no requirement that amounts so paid be deposited to the Bond Fund. Section 5.03. Investment of Moneys. Except as otherwise provided in this Section, any moneys in any of the funds and accounts to be established by the Bondowner Re presentative pursuant to this Indenture shall be invested by the Bondowner Representative in Investment Securities selected and directed in writing by the Borrower (with the prior written consent of the Bondowner Representative), with respect to which payments of principal thereof and interest thereon are scheduled or otherwise payable not later than one day prior to the date on which it is estimated that such moneys will be required by the Bondowner Representative. In the absence of such directions, the Bondowner Representative shall invest such monies in Investment Securities described in clause (b) of the definition thereof. The Bondowner Representative shall have no liability or responsibility for any loss resulting from any investment made in accordance with this Section 5.03. -20- Except as otherwise provided in the next sentence, all investments of amounts deposited in any fund or account created by or pursuant to this Indenture, or otherwise containing gross proceeds of the Bonds (within the meaning of Section 148 of the Code) shall be acquired, disposed of, and valued (as of the date that valuation is required by this Indenture or the Code) at Fair Market Value. Investments in funds or accounts (or portions thereof) that are subject to a yield restriction under applicable provisions of the Code shall be valued at their present value (within the meaning of Section 148 of the Code). The Bondowner Representative shall have no duty to determine Fair Market Value or present value hereunder. For the purpose of determining the amount in any fund or account, all Investment Securities credited to such fund or account shall be valued at the lower of cost or par (which shall be measured exclusive of accrued interest) after the first payment of interest following purchase. Any interest, profit or loss on such investment of moneys in any fund or account shall be credited or charged to the respective funds or accounts from which such investments are made. The Bondowner Representative may sell or present for redemption any obligations so purchased whenever it shall be necessary in order to provide moneys to meet any payment, and the Bondowner Representative shall not be liable or responsible for any loss resulting from such sale or redemption. The Bondowner Representative may make any and all investments permitted under this Section 5.03 through its own trust or banking department or any affiliate and may pay said department reasonable, customary fees for placing such investments. The Bondowner Representative and its affiliates may act as principal, agent, sponsor, advisor or depository with respect to Investment Securities under this Section 5.03. The Issuer (and the Borrower by its execution of the Loan Agreement) acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the Issuer or the Borrower the right to receive brokerage confirmations of security transactions as they occur, the Issuer and the Borrower will not receive such confirmations to the extent permitted by law. The Bondowner Representative will furnish the Borrower and the Issuer (to the extent requested by it) periodic cash transaction statements which include detail for all investment transactions made by the Bondowner Representative hereunder. During the period that the Bondowner Representative and/or its affiliates are the Holders of all of the Bonds, the Bondowner Representative may hold all funds commingled in a single fund, uninvested, or apply such funds as otherwise agreed between the Bondowner Representative and the Borrower, provided that at all times the Bondowner Representative can determine the amounts attributable to the Bonds and the Loan and any investment earnings thereon. Section 5.04. Enforcement of Obligations. The Bondowner Representative shall be entitled (but not required, unless (i) requested to do so by the holders of a majority in principal amount of the Bonds then outstanding and (ii) if required by the Bondowner Representative, provided with indemnification to its satisfaction against the costs, expenses and liabilities incurred in compliance with such request) to take all steps, actions and proceedings reasonably -21- necessary in its judgment: (a) to enforce the terms, covenants and conditions of, and preserve and protect the priority of its interest in and under, the Loan Agreement, any other Loan Document, the Regulatory Agreement and the Deed of Trust, (b) to require compliance with all covenants, agreements and conditions on the part of the Issuer contained in this Indenture with respect to the Revenues, and (c) to be reimbursed for its expenses (including attorney’s fees) by the Borrower in taking any action referred to in the preceding clauses (a) and/or (b). ARTICLE VI COVENANTS OF THE ISSUER Section 6.01. Payment of Principal and Interest. The Issuer shall punctually pay, but only out of Revenues as herein provided, the principal and the interest (and Premium, if any) to become due in respect of every Bond issued hereunder at the times and places and in the manner provided herein and in the Bonds, according to the true intent and meaning thereof. When and as paid in full, all Bonds shall be delivered to the Bondowner Representative and shall forthwith be destroyed. Section 6.02. Paying Agents. The Issuer, with the written approval of the Bondowner Representative, may appoint and at all times have one or more paying agents in such place or places as the Issuer may designate, for the payment of the principal of, and the interest (and premium, if any) on, the Bonds; provided, however, that so long as Wells Fargo Bank, National Association and/or one or more of its affiliates are the registered owners of all of the Bonds then outstanding, the Bondowner Representative shall have the sole right to appoint, remove and/or replace any paying agent(s) for the Bonds. It shall be the duty of the Bondowner Representative to make such arrangements with any such paying agent as may be necessary and feasible to assure, to the extent of the moneys held by the Bondowner Representative for such payment, the availability of funds for the prompt payment of the principal of and interest and Premium, if any, on the Bonds presented at any place of payment. The paying agent initially appointed hereunder is the Bondowner Representative. Section 6.03. Preservation of Revenues; Amendment of Documents. The Issuer (a) shall not take any action to interfere with or impair the pledge and assignment hereunder of Revenues and the assignment to the Bondowner Representative of rights of the Issuer under the Agreement and the Deed of Trust, or the Bondowner Representative’s enforcement of any rights hereunder or thereunder, (b) shall not take any action to impair the validity or enforceability of the Agreement or the Deed of Trust, and (c) shall not waive any of its rights under or any other provision of or permit any amendment of the Agreement or the Deed of Trust, without the prior written consent of the Bondowner Representative; provided that such consent of the Bondowner Representative shall not be required if the Bondowner Representative shall have received an opinion of Bond Counsel to the effect that such amendment (i) is required to preserve the exclusion of interest on the Bonds from gross income for federal income tax purposes or compliance by the Bonds or the Project with the Act and the laws of the State of California; and (ii) will not adversely affect the interests of the Bondholders. The Bondowner Representative may give such written consent, and may itself take any such action or consent to a waiver of any provision of or an amendment or modification to or -22- replacement of the Agreement, the Deed of Trust, the Regulatory Agreement, any of the other Loan Documents, or any other document, instrument or agreement relating to the security for the Bonds, only if (i) such action or such waiver, amendment, modification or replacement (a) is authorized or required by the terms of this Indenture, the Loan Agreement, the Deed of Trust, the applicable Loan Documents or the Regulatory Agreement, or (b) will not, based on an Opinion of Counsel furnished to the Bondowner Representative, materially adversely affect the interests of the holders of the Bonds or result in any impairment of the security hereby given for the payment of the Bonds, or (c) has first been approved by the written consent of all of the holders of the Bonds then Outstanding; and (ii) the Bondowner Representative shall have first obtained an opinion of Bond Counsel to the effect that such action or such waiver, amendment, modification or replacement will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes or conformance of the Bonds and the Project with the Act or the laws of the State of California relating to the Bonds. Section 6.04. Compliance with Indenture. The Issuer shall not issue, or permit to be issued, any Bonds secured or payable in any manner out of Revenues other than in accordance with the provisions of this Indenture; it being understood that the Issuer reserves the right to issue obligations payable from and secured by sources other than the Revenues and the assets assigned herein. The Issuer shall not suffer or permit any default within its power to occur under this Indenture, but shall faithfully observe and perform all the covenants, conditions and requirements hereof. So long as any Bonds are outstanding, the Issuer shall not create or suffer to be created any pledge, lien or charge of any type whatsoever upon all or any part of the Revenues, other than the lien of this Indenture. Section 6.05. Further Assurances. Whenever and so often as requested so to do by the Bondowner Representative, the Issuer (at the sole cost and expense of the Borrower) shall promptly execute and deliver or cause to be executed and delivered all such other and further instruments, documents or assurances, and promptly do or cause to be done all such other and further things, as may be necessary or reasonably required in order to further and more fully vest in the Bondowner Representative and the Bondholders all of the rights, interests, powers, benefits, privileges and advantages conferred or intended to be conferred upon them by this Indenture and to perfect and maintain as perfected such rights, interests, powers, benefits, privileges and advantages. Section 6.06. No Arbitrage. Solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, the Issuer shall not take, nor permit nor suffer to be taken by the Bondowner Repre sentative or otherwise, any action with respect to the gross proceeds of the Bonds which if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of the issuance of the Bonds would have caused the Bonds to be “arbitrage bonds” within the meaning of Section 148(a) of the Code and Regulations promulgated thereunder. Section 6.07. Limitation of Expenditure of Proceeds. The Issuer shall assure, solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, that not less than 95% of the amount advanced as the purchase price of the Bonds, plus premium (if any) paid on the purchase of the Bonds by the original purchaser thereof from the Issuer, less any original discount, are used for -23- Qualified Project Costs and less than 25 percent of such amount is used for land or an interest in land. The Bondowner Representative shall have no obligation to monitor the Issuer’s compliance with or to enforce the terms of this Section. Section 6.08. Rebate of Excess Investment Earnings to United States. The Issuer hereby covenants, solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate (including the Borrower’s covenants in Sections 3.3(h)(iii) and (iv), 11.39 and 11.44(c) in the Loan Agreement and in Section 2(t) of the Regulatory Agreement) to calculate or cause to be calculated excess investment earnings to the extent required by Section 148(f) of the Code and the Borrower shall cause payment of an amount equal to excess investment earnings to the United States in accordance with the Regulations, all at the sole expense of the Borrower. Section 6.09. Limitation on Issuance Costs. The Issuer shall assure, solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, that, from the proceeds of the Bonds received from the original purchaser thereof and investment earnings thereon, an amount not in excess of two percent (2%) of the face amount of the Bonds will be used to pay for, or provide for the payment of, Issuance Costs. For this purpose, if the fees of such original purchaser are retained as a discount on the purchase of the Bonds, such retention shall be deemed to be an expenditure of proceeds of the Bonds for said fees. Section 6.10. Federal Guarantee Prohibition. The Issuer covenants that it shall take no action nor, solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, knowingly permit nor suffer any action to be taken if the result of the same would be to cause the Bonds to be “federally guaranteed” within the meaning of the Code. Section 6.11. Prohibited Facilities. The Issuer, solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, shall assure that no portion of the proceeds of the Bonds will be used to provide any airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises. The Issuer, solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, shall assure that no portion of the proceeds of the Bonds will be used for an office unless the office is located on the premises of the facilities constituting one of the Project and unless not more than a de minimis amount of the functions to be performed at such office are not related to the day-to-day operations of one of the Project. Section 6.12. Use Covenant. Solely in reliance upon the covenants and representations of the Borrower in the Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, the Issuer shall not use or knowingly permit the use of any proceeds of Bonds or any other funds of the Issuer, directly or indirectly, in any manner, and shall not take or permit to be taken any other action or actions, which would result in any of the Bonds being treated as an obligation not described in Section 142(d) of the Code by reason of such Bond not meeting the requirements of Section 142(d) of the Code. -24- Section 6.13. Immunities and Limitations of Responsibility of Issuer. The Issuer shall be entitled to the advice of counsel (who, except as otherwise provided, may be counsel for any Bondholder), and the Issuer shall be wholly protected as to action taken or omitted in reliance on such advice. The Issuer may rely conclusively on any communication or other document furnished to it hereunder and reasonably believed by it to be genuine. The Issuer shall not be liable for any action (a) taken by it under the Bond Documents in good faith and reasonably believed by it to be within its discretion or powers hereunder, or (b) in good faith omitted to be taken by it under the Bond Documents because such action was reasonably believed to be beyond its discretion or powers hereunder, or (c) taken by it under the Bond Documents pursuant to any direction or instruction by which it is governed hereunder, or (d) omitted to be taken by it under the Bond Documents by reason of the lack of any direction or instruction required hereby for such action; nor shall it be responsible for the consequences of any error of judgment reasonably made by it with respect to the foregoing matters. The Issuer shall in no event be liable for the application or misapplication of funds or for other acts or defaults by any person, except its own officers and employees. When any payment or consent or other action by it is called for hereby, it may defer such action pending receipt of such evidence (if any) as it may require in support thereof. The Issuer shall not be required to take any remedial action (other than the giving of notice) unless indemnity in a form acceptable to the Issuer is furnished for any expense or liability to be incurred in connection with such remedial action, other than liability for failure to meet the standards set forth in this Section. The Issuer shall be entitled to reimbursement from the Borrower for its expenses reasonably incurred or advances reasonably made, with interest at the rate of interest on the Bonds, in the exercise of its rights or the performance of its obligations hereunder, to the extent that it acts without previously obtaining indemnity. No permissive right or power to act which the Issuer may have shall be construed as a requirement to act; and no delay in the exercise of a right or power shall affect its subsequent exercise of the right or power. A default by the Borrower in any of its covenants, representations and agreements in the Loan Agreement, the Regulatory Agreement or the Tax Certificate on which the Issuer is relying in Sections 6.06 through 6.12 hereof shall not be considered a default hereunder by the Issuer. The Borrower has indemnified the Issuer against certain acts and events as set forth in Section 11.38 of the Loan Agreement and Section 9 of the Regulatory Agreement. Such indemnities shall survive payment of the Bonds and discharge of the Indenture. Section 6.14. Additional Representations by the Issuer. The Issuer hereby represents and warrants to the Bondholders and the Bondowner Representative that, as of the Closing Date: (a) The Issuer is a public body, corporate and politic, duly organized and existing under the laws of the State and is duly authorized enter into and perform its obligations under this Indenture. (b) All requirements have been met and procedures have occurred in order to authorize the execution and delivery by the Issuer of this Indenture. The Issuer has taken all necessary action and has complied with all provisions of the law required to -25- make this Indenture a valid and binding limited obligation of the Issuer, except to the extent limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity, or by public policy. (c) The Bonds have been duly authorized, executed and delivered by the Issuer. Nothing in this Indenture shall be construed as requiring the Issuer to provide any financing for the Project, other than to use the proceeds of the Bonds to make the Loan, or to provide sufficient moneys for all of the costs of the Project. (d) To the best knowledge of the Issuer, there is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency or public board or body pending or threatened against the Issuer that (i) affects or seeks to prohibit, restrain or enjoin the execution or delivery of this Indenture, the origination of the Loan or the lending of the proceeds of the Loan to the Borrower, or the execution and delivery of the Loan Documents, (ii) affects or questions the validity or enforceability of the Bonds or the Loan Documents, or (iii) questions the tax-exempt status of interest on the Bonds. (e) The California Debt Limit Allocation Committee has provided an allocation of the State of California’s private activity bond volume cap under section 146 of the Code to the Issuer for the Bonds, and the Issuer will comply with the requirements of the Code with respect to such allocation. The Issuer has applied the alternative option under clause (2) of the first paragraph of Section 3.01 of IRS Notice 2011-63 with respect to the issue date of the Bonds; and, in connection therewith, has included the information on Form 8038 filed for the Bonds that is required by section 3.03 of said Notice. The Issuer makes no representation or warranty that the Project or any one or more of them will be adequate or sufficient for the purposes of the Borrower. Nothing in this Indenture shall be construed as requiring the Issuer to provide any financing for the Project other than from the proceeds of the Loan. ARTICLE VII DEFAULT Section 7.01. Events of Default; Acceleration; Waiver of Default. Each of the following events shall constitute an “Event of Default” hereunder: (a) failure to pay the principal of any Bond when and as the same shall become due and payable (including but not limited to amounts due on the Bonds under Section 4.01 hereof), whether at maturity as therein expressed, by proceedings for redemption, by declaration or otherwise; (b) failure to pay any installment of interest on any Bond when such interest installment shall become due and payable; and -26- (c) failure by the Issuer to perform or observe any other of the covenants, agreements or conditions on its part in this Indenture or in the Bonds contained, and the continuation of such failure for a period of thirty (30) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Issuer and the Borrower by the Bondowner Representative, or to the Issuer, the Borrower and the Bondowner Representative by the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Bonds at the time outstanding. Notwithstanding the foregoing, a default by the Borrower under the Deed of Trust or the Loan Agreement shall not, in itself, constitute an Event of Default under this Indenture. No default specified in (c) above shall constitute an Event of Default unless the Issuer or the Borrower shall have failed to correct such default within the applicable period; provided, however, that if the default described in (c) above shall be such that it cannot be corrected within such period, it shall not constitute an Event of Default if corrective action is instituted by the Issuer or the Borrower within the applicable period and diligently pursued until the default is corrected; provided that the time elapsed until completion of corrective action shal l not exceed one hundred eighty (180) days. With regard to any alleged default concerning which notice is given to the Borrower under the provisions of (c) above, the Issuer hereby grants the Borrower full authority for the account of the Issuer to perform any covenant or obligation the non-performance of which is alleged in said notice to constitute a default in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts and with power of substitution. Upon the occurrence of an Event of Default described in (a), (b) or (c) above, the Bondowner Representative may (i) by notice in writing to the Issuer and the Borrower (with a copy to the Investor Limited Partner), declare the principal of all the Bonds then outstanding, and the interest accrued and Premium thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Bonds contained to the contrary notwithstanding, and/or (ii) pursue such other remedies as are permitted under applicable law. Upon any such declaration of acceleration, the Bondowner Representative shall fix a date for payment of the Bonds. The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, there shall have been deposited with the Bondowner Representative a sum sufficient to pay all the principal of the Bonds matured or required to be redeemed prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with interest on such overdue installments of principal, Premium, and the reasonable fees and expenses of the Bondowner Representative, its agents and counsel, and any and all other defaults actually known to a Responsible Officer of the Bondowner Representative (other than in the payment of principal of and interest on the Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Bondowner Representative or provision deemed by the Bondowner Representative to be adequate shall -27- have been made therefor, then, and in every such case, the holders of at least a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the Issuer and to the Bondowner Representative and with indemnification satisfactory to the Bondowner Representative, may, on behalf of the holders of all the Bonds, rescind and annul such declaration and its consequences and waive such default; but no such rescission, annulment or waiver shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Section 7.02. Institution of Legal Proceedings by Bondowner Representative. If one or more of the Events of Default shall occur, the Bondowner Representative in its discretion may proceed to protect or enforce its rights or the rights of the holders of Bonds under the Act or under this Indenture and the Agreement, by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein or therein, or in aid of the execution of any power herein or therein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Bondowner Representative shall deem most effectual in support of any of its rights or duties hereunder. Section 7.03. Application of Moneys Collected by Bondowner Representative. Any moneys collected by the Bondowner Representative pursuant to Section 7.02 shall be applied in the order following, at the date or dates fixed by the Bondowner Representative and, in the case of distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation of the Bonds and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid: First: For payment of all amounts due to the Bondowner Representative under Section 8.06. Second: For deposit in the Bond Fund to be applied to payment of the principal of all Bonds then due and unpaid, Premium and interest thereon with application as between principal, Premium and interest as the Bondowner Representative shall determine in its sole discretion; and if there is more than one Bondowner ratably to the persons entitled thereto without discrimination or preference. Third: For payment of all other amounts owing by the Borrower to any person hereunder, under the Loan Agreement or under any of the other Loan Documents. Fourth: To the Borrower. Section 7.04. Effect of Delay or Omission to Pursue Remedy. No delay or omission of the Bondowner Representative or of any holder of Bonds to exercise any right or power arising from any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every power and remedy given by this Article VII to the Bondowner Representative or to the holders of Bonds may be exercised from time to time and as often as shall be deemed expedient. In case the Bondowner Representative shall have proceeded to enforce any right under this Indenture, and such proceedings shall have been discontinued or abandoned because of waiver or for any other reason, or shall have been determined adversely to the Bondowner Representative, then and in every such case the Issuer, -28- the Bondowner Representative and the holders of the Bonds, severally and respectively, shall be restored to their former positions and rights hereunder in respect to the trust estate; and all remedies, rights and powers of the Issuer, the Bondowner Representative and the holders of the Bonds shall continue as though no such proceedings had been taken. Section 7.05. Remedies Cumulative. No remedy herein conferred upon or reserved to the Bondowner Representative or to any holder of the Bonds is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. Section 7.06. Covenant to Pay Bonds in Event of Default. The Issuer covenants that, upon the happening of any Event of Default, the Issuer will pay to the Bondowner Representative upon demand, but only out of Revenues, for the benefit of the holders of the Bonds, the whole amount then due and payable thereon (by declaration or otherwise) for interest or for principal, or both, as the case may be, Premium and all other sums which may be due hereunder or secured hereby, including reasonable compensation to the Bondowner Representative, its agents and counsel, and any expenses or liabilities incurred by the Bondowner Representative hereunder. In case the Issuer shall fail to pay the same forthwith upon such demand, the Bondowner Representative, in its own name, and upon being indemnified to its satisfaction shall be entitled to institute proceedings at law or in equity in any court of competent jurisdiction to recover judgment for the whole amount due and unpaid, together with costs and reasonable attorneys’ fees, subject, however, to the condition that such judgment, if any, shall be limited to, and payable solely out of, Revenues and any other assets pledged, transferred or assigned to the Bondowner Representative under Section 5.01 as herein provided and not otherwise. The Bondowner Representative shall be entitled to recover such judgment as aforesaid, either before or after or during the pendency of any proceedings for the enforcement of this Indenture, and the right of the Bondowner Representative to recover such judgment shall not be affected by the exercise of any other right, power or remedy for the enforcement of the provisions of this Indenture. Section 7.07. Bondowner Representative Appointed Agent for Bondholders. The Bondowner Representative is hereby appointed the agent of the holders of all Bonds outstanding hereunder for the purpose of filing any claims relating to the Bonds. Section 7.08. Power of Bondowner Representative to Control Proceedings. In the event that the Bondowner Representative, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the written request of the holders of a majority in principal amount of the Bonds then outstanding, it shall have full power, in the exercise of its discretion for the best interests of the holders of the Bonds, with respect to the continuance, discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the Bondowner Representative shall not, unless there no longer continues an Event of Default hereunder, discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at the time there has been filed with it a written request signed by the holders of at least a majority in principal amount of the Bonds outstanding hereunder opposing such discontinuance, withdrawal, compromise, settlement or other disposal of such litigation. -29- Section 7.09. Limitation on Bondholders’ Right to Sue. No holder of any Bond issued hereunder (except the Bondowner Representative, if it is a holder of Bonds) shall have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Indenture, unless (a) such holder shall have previously given to the Bondowner Representative written notice of the occurrence of an Event of Default hereunder; (b) the holders of at least a majority in aggregate principal amount of all the Bonds then outstanding shall have made written request upon the Bondowner Representative to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said holders shall have tendered to the Bondowner Representative indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Bondowner Representative shall have refused or omitted to comply with such request for a period of thirty (30) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Bondowner Representative. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any holder of Bonds (except the Bondowner Representative, if it is a holder of Bonds) of any remedy hereunder; it being understood and intended that no one or more holders of Bonds (except the Bondowner Representative, if it is a holder of Bonds) shall have any right in any manner whatever by its or their action to enforce any right under this Indenture, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of this Indenture shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all holders of the outstanding Bonds. The right of any holder of any Bond to receive payment of the principal of (and premium, if any) and interest on such Bond out of Revenues, as herein and therein provided, on and after the respective due dates expressed in such Bond, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder, except as otherwise provided or allowed pursuant to Sections 5.04, 7.02 and/or 7.08 of this Indenture. Section 7.10. Limitation of Liability to Revenues. Notwithstanding anything in this Indenture contained, the Issuer shall not be required to advance any moneys derived f rom any source, other than the Revenues, for any of the purposes mentioned in this Indenture, whether for the payment of the principal of or interest on the Bonds or for any other purpose of this Indenture. The Bonds are limited obligations of the Issuer, and are payable from and secured by the Revenues only. The Issuer shall not be liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reason of or in connection with the Loan Agreement, the Regulatory Agreement, the Bonds or this Indenture, except only to the extent amounts are received for the payment thereof under the Loan Documents. -30- ARTICLE VIII THE BONDOWNER REPRESENTATIVE AND AGENTS Section 8.01. Duties, Immunities and Liabilities of Bondowner Representative. The Bondowner Representative shall perform such duties and only such duties as are specifically set forth in this Indenture and no additional covenants or duties of the Bondowner Representative shall be implied in this Indenture. All of the provisions of the next two paragraphs of this Section 8.01 shall be effective if and only during such time as the Bondowner Representative is not the sole owner of the Bonds. The Bondowner Representative shall, during the existence of any Event of Default (which has not been cured or waived), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as reasonable persons familiar with such matters would exercise or use under similar circumstances in the conduct of their own affairs. No provision of this Indenture shall be construed to relieve the Bondowner Representative from liability for its own negligent action or its own negligent failure to act, except that: (a) the duties and obligations of the Bondowner Representative shall be determined solely by the express provisions of this Indenture, the Bondowner Representative shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Bondowner Representative; and in the absence of bad faith on the part of the Bondowner Representative, the Bondowner Representative may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificate or opinion furnished to the Bondowner Representative conforming to the requirements of this Indenture; (b) At all times, regardless of whether or not any Event of Default shall exist, (1) the Bondowner Representative shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers or by any agent or attorney of the Bondowner Representative appointed with due care unless (except as otherwise provided in Section 8.01(f)) the Bondowner Representative was negligent in ascertaining the pertinent facts; and (2) the Bondowner Representative shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, accompanied by an opinion of Bond Counsel as provided herein or in accordance with the directions of the holders of not less than a majority, or such other percentage as may be required hereunder, in aggregate principal amount of the Bonds at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Bondowner Representative, or exercising any trust or power conferred upon the Bondowner Representative under this Indenture; (c) The Bondowner Representative shall not be required to take notice or be deemed to have notice of (i) any default hereunder or under the Loan Agreement, except -31- defaults under Section 7.01(a) or (b) hereof, unless a Responsible Officer of the Bondowner Representative shall be specifically notified in writing of such default by the Issuer or the owners of at least a majority in aggregate principal amount of all Bonds then outstanding, or (ii) any default under the Regulatory Agreement unless a Responsible Officer of the Bondowner Representative shall be specifically notified in writing of such default by the Issuer or the Borrower; (d) Before taking any action under Article VII hereof or this Section at the request or direction of the Bondholders, the Bondowner Representative may require that a satisfactory indemnity bond be furnished by the Bondholders, for the reimbursement of all costs and expenses to which it may be put and to protect it against all liability which may be incurred in compliance with such request or direction, except liability which is adjudicated to have resulted from its negligence or willful misconduct in connection with any action so taken; (e) Upon any application or request by the Issuer to the Bondowner Representative to take any action under any provision of this Indenture, the Issuer shall furnish to the Bondowner Representative a Certificate of the Issuer stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such Counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished; (f) The Bondowner Representative may execute any of the powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Bondowner Representative shall not be responsible for any negligence or misconduct on the part of any agent or attorney appointed with due care by it hereunder (but this provision shall not prohibit any action against any such agent or attorney for their negligent acts); (g) Neither the Issuer nor the Borrower shall be deemed to be agents of the Bondowner Representative for any purpose, and the Bondowner Representative shall not be liable for any noncompliance of any of them in connection with their respective duties hereunder or in connection with the transactions contemplated hereby; (h) The Bondowner Representative shall be entitled to rely upon telephonic notice for all purposes whatsoever so long as the Bondowner Representative reasonably believes such telephonic notice has been given by a person authorized to give such notice; (i) The immunities extended to the Bondowner Representative also extend to its directors, officers, employees and agents; (j) Under no circumstances shall the Bondowner Representative be liable in its individual capacity for the obligations evidenced by the Bonds, it being the sole -32- obligation of the Bondowner Representative to administer, for the benefit of the Bondholders, the various funds and accounts established hereunder; (k) No permissive power, right or remedy conferred upon the Bondowner Representative hereunder shall be construed to impose a duty to exercise such power, right or remedy; (l) The Bondowner Representative shall not be liable for any action taken or not taken by it in accordance with the direction of a majority in aggregate principal amount of Bonds outstanding related to the exercise of any right, power or remedy available to the Bondowner Representative; (m) The Bondowner Representative shall have no duty to review any financial statements, budgets or other financial information filed with it by or on behalf of the Borrower under or pursuant to the Loan Agreement; and (n) The Bondowner Representative acknowledges that in order to preserve the tax-exempt status of the Bonds, the Borrower must comply with requirements for rebate of excess investment earnings to the federal government to the extent applicable. The Bondowner Representative agrees to use commercially reasonable efforts to send the Borrower, with a copy to the Issuer, a notification or reminder of its obligation to rebate excess investment earnings by November 1 of each fifth year, commencing November 1, 2021 (or, if earlier, such notice shall be sent on the date of payment in full of the Bonds, with any such rebate due not more than sixty (60) days following payment in full of the Bonds). However, in no event shall the Bondowner Representative be liable to the Issuer or the Borrower for the failure to so notify or remind the Borrower. None of the provisions contained in this Indenture shall require the Bondowner Representative to expend or risk its own funds or otherwise incur individual financial liability in the performance of any of its duties or in the exercise of any of its rights or powers. Whether or not therein expressly so provided, every provision of this Indenture, the Loan Agreement, the Regulatory Agreement or any other document relating to the conduct, powers or duties of, or affecting the liability of, or affording protection to, the Bondowner Representative shall be subject to the provisions of this Article VIII. Section 8.02. Right of Bondowner Representative to Rely Upon Documents, Etc. Except as otherwise provided in Section 8.01: (a) The Bondowner Representative may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond or other paper or document reasonably believed by it to be genuine and to have been signed an d presented by the proper party or parties; (b) Any consent, demand, direction, election, notice, order or request of the Issuer mentioned herein shall be sufficiently evidenced by a Written Consent, Written Demand, Written Direction, Written Election, Written Notice, Written Order or Written -33- Request of the Issuer, and any resolution of the Issuer may be evidenced to the Bondowner Representative by a Certified Resolution; (c) The Bondowner Representative may consult with counsel (who may be counsel for the Issuer, counsel for the Bondowner Representative or Bond Counsel) and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel; (d) Whenever in the administration of this Indenture the Bondowner Representative shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Bondowner Representative, be deemed to be conclusively proved and established by a Certificate of the Issuer; and such Certificate of the Issuer shall, in the absence of negligence or bad faith on the part of the Bondowner Representative, be full warrant to the Bondowner Representative for any action taken or suffered by it under the provisions of this Indenture upon the faith thereof; and (e) The Bondowner Representative shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Bondowner Representative, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. Section 8.03. Bondowner Representative Not Responsible for Recitals. The recitals contained herein and in the Bonds shall be taken as the statements of the Issuer, and the Bondowner Representative assumes no responsibility for the correctness of the same or for the correctness of the recitals in the Loan Agreement or the Regulatory Agreement. The Bondowner Representative shall have no responsibility with respect to any information, statement or recital in any offering memorandum or other disclosure material prepared or distributed with respect to the Bonds. The Bondowner Representative makes no representations as to the value or condition of any assets pledged or assigned as security for the Bonds, or as to the right, title or interest of the Issuer therein, or as to the security provided thereby or by this Indenture, the Loan Agreement, the Deed of Trust or the other Loan Documents, or as to the compliance of the Project with the Act, or as to the tax-exempt status of the Bonds, or as to the technical or financial feasibility of the Project, or as to the validity or sufficiency of this Indenture as an instrument of the Issuer or of the Bonds as obligations of the Issuer. The Bondowner Representative shall not be accountable for the use or application by the Issuer of any of the Bonds authenticated or delivered hereunder or of the use or application of the proceeds of such Bonds by the Issuer or the Borrower or their agents. Section 8.04. Intervention by Bondowner Representative. The Bondowner Representative may intervene on behalf of the owners of the Bonds in any judicial proceeding to which the Issuer is a party and which, in the opinion of the Bondowner Representative an d its counsel, has a substantial bearing on the interests of owners of the Bonds and, subject to the -34- provisions of Section 8.01(d), shall do so if requested in writing by the owners of a majority in aggregate principal amount of all Bonds then outstanding. Section 8.05. Moneys Received by Bondowner Representative. All moneys received by the Bondowner Representative shall, until used or applied as herein provided, be held for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law or as otherwise provided herein. The Bondowner Representative shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Issuer or the Borrower to pay thereon. Section 8.06. Compensation and Indemnification of Bondowner Representative and Agents. The Borrower is required under the Loan Agreement: (a) to pay to the Bondowner Representative reasonable compensation for all services rendered by it hereunder and under the other agreements related to the Bonds to which it is a party; (b) except as otherwise expressly provided herein, to reimburse the Bondowner Representative upon its request for all reasonable expenses, disbursements and advances incurred or made by the Bondowner Representative in accordance with any provision of this Indenture or other agreement related to the Bonds to which the Bondowner Representative is a party or incurred in complying with any request made by the Issuer with respect to the Bonds (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance attributable in whole or in part to its negligence or willful misconduct; (c) to indemnify the Bondowner Representative for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the duties of the Bondowner Representative under this Indenture, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder or other agreement related hereto to which the Bondowner Representative is a party; and (d) to indemnify the Bondowner Representative for any reasonable costs incurred during a period of default hereunder. If any property, other than cash, shall at any time be held by the Bondowner Representative subject to this Indenture, or any Supplemental Indenture, as security for the Bonds, the Bondowner Representative, if and to the extent authorized by a receivership, bankruptcy or other court of competent jurisdiction or by the instrument subjecting such property to the provisions of this Indenture as such security for the Bonds, shall be entitled but not obligated to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The rights of the Bondowner Representative to compensation for services and to payment or reimbursement for expenses, disbursements, liabilities and advances shall have and is hereby granted a lien and a security interest prior to the Bonds in respect of all property and funds held or collected by the Bondowner Representative as such, except funds held by the Bondowner Representative for the benefit of the holders of particular Bonds, which amounts shall be held solely for the benefit of the Bondholders and used only for the payment of principal of and Premium, if any, and interest on the Bonds. The Bondowner Representative’s rights to immunities, indemnities and protection from liability hereunder and its rights to payment of its fees and expenses shall survive its resignation or removal and final payment of the Bonds. -35- Section 8.07. Qualifications of Bondowner Representative. There shall at all times be a Bondowner Representative hereunder which shall be (a) Wells Fargo Bank, National Association, prior to the Conversion Date; (b) CCRC, on and after the Conversion Date; or (c) in connection with a sale or transfer of the Bonds, an owner of the Bonds as permitted by Section 2.05(b). Any change in the Bondowner Representative referred to in the preceding clause (c) shall be only at the written request of a majority of the principal amount of all of the Bonds outstanding, and any such successor Bondowner Representative that is not an affiliate of the predecessor Bondowner Representative or CCRC shall be reasonably acceptable to the Issuer. The Issuer shall have no right to remove or replace the Bondowner Representative. Any successor Bondowner Representative referred to in clause (c) of the first sentence of this Section 8.07 shall acknowledge its acceptance of its obligations under this Indenture by a written instrument delivered to the Issuer, the Borrower and, if the successor is not the sole owner of all of the Bonds then outstanding, the owners of the Bonds. Section 8.08. Merger or Consolidation of Bondowner Representative. Any corporation or association into which the Bondowner Representative may be merged or with which it may be consolidated, or any corporation or association resulting from any merger or consolidation to which the Bondowner Representative shall be a party, or any person succeeding to the corporate trust or bond purchase program business of the Bondowner Representative, shall be the successor of the Bondowner Representative hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding, provided that such successor Bondowner Representative shall be eligible under the provisions of the first sentence of Section 8.07. Section 8.09. Dealing in Bonds. The Bondowner Representative, in its individual capacity, may in good faith buy, sell, own, hold and deal in any of the Bonds, and may join in any action which any Bondholder may be entitled to take with like effect as if it did not ac t in any capacity hereunder. The Bondowner Representative in its individual capacity, either as principal or agent, may also engage in or be interested in any financial or other transaction with the Issuer, and may act as depository, trustee, bondowner representative or agent for any committee or body of Bondholders secured hereby or other obligations of the Issuer as freely as if it did not act in any capacity hereunder. Section 8.10. Indemnification of Issuer by Bondowner Representative. The Bondowner Representative acknowledges that notwithstanding any other provision of this Indenture, the Bondowner Representative is acting as an independent contractor and not as the agent of Issuer in servicing and administering the Bonds and the Loan. The Bondowner Representative agrees to indemnify, hold harmless and defend the Issuer and its respective Supervisors, officers, agents and employees against all loss, costs, damages, expenses, suits, judgments, actions and liabilities of whatever nature (including, without limitation, attorneys’ fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from or arising out of or related to any act or omission on the part of the Bondowner Representative under this Indenture caused by the negligence or willful misconduct of the Bondowner Representative. -36- If a third party makes a claim against the Issuer that may be subject to indemnification pursuant to this Section 8.10, the Issuer shall give prompt written notice of such claim to the Bondholder Representative; provided, however, that the failure to provide such notice shall not release the Bondholder Representative from any of its obligations hereunder except only to the extent the Bondholder Representative is prejudiced by such failure. The Bondholder Representative shall be entitled to assume and control the defense of such claim at its expense through counsel of its choice, provided that such counsel is reasonably satisfactory to the Issuer. The Issuer shall cooperate with the Bondholder Representative, at the expense of the Bondholder Representative, in such defense and make available to the Bondholder Representative any witnesses, pertinent records, materials and information in the Issuer’s possession as reasonably required by the Bondholder Representative. The Issuer shall have no right to settle or compromise any claim or consent to the entry of any judgment against the Issuer which is the subject of indemnification hereunder without the prior written consent of the Bondholder Representative; and the Bondholder Representative shall have no right to settle or compromise any claim against the Issuer or consent to the entry of any judgment against the Issuer without the prior written consent of the Issuer. Section 8.11. Bondowner Representative Not Agent of Issuer. The Bondowner Representative acknowledges that notwithstanding any other provision of this Indenture, the Bondowner Representative is acting as an independent contractor and not as the agent of Issuer in servicing and administering the Bonds and the Loan. ARTICLE IX MODIFICATION OF INDENTURE Section 9.01. Modification of Indenture. With the prior written consent of the Bondowner Representative and the Issuer, the Bondowner Representative may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture. Upon receipt by the Bondowner Representative of a Certified Resolution authorizing the execution by the Issuer of any such supplemental indenture, and upon the written consent of the Bondowner Representative thereto, the Bondowner Representative shall join with the Issuer in the execution of such supplemental indenture, unless such supplemental indenture affects the rights or obligations of the Borrower or any general partner or limited partner of the Borrower hereunder or under the Loan Agreement, in which case the Bondowner Representative shall enter into such supplemental indenture only if the Bondowner Representative has received the Borrower’s, or such general partner’s or limited partner’s, as applicable, written consent thereto. Promptly after the execution by the Issuer and the Bondowner Representative of any supplemental indenture pursuant to the provisions of this Section, if the Bondowner Representative is not the sole owner of the Bonds then outstanding, the Bondowner Representative shall give Bondholders, by first class mail, a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Bondowner Representative to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. -37- Section 9.02. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture of the Issuer, the Bondowner Representative and all holders of outstanding Bonds shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be part of the terms and conditions of this Indenture for any and all purposes. Section 9.03. Opinion of Counsel as to Supplemental Indenture. Subject to the provisions of Section 8.01, the Bondowner Representative shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to the provisions of this Article IX is authorized and permitted by this Indenture. Section 9.04. Notation of Modification on Bonds; Preparation of New Bonds. Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX may bear a notation, in form approved by the Bondowner Representative and the Issuer, as to any matter provided for in such supplemental indenture, and if such supplemental indenture shall so provide, new Bonds, so modified as to conform, in the opinion of the Bondowner Representative and the Issuer, to any modification of this Indenture contained in any such supplemental indenture, may be prepared and authenticated by the Bondowner Representative and delivered without cost to the holders of the Bonds then outstanding, upon surrender for cancellation of such Bonds in equal aggregate principal amounts. ARTICLE X DISCHARGE OF INDENTURE Section 10.01. Discharge of Indenture. If the entire indebtedness on all Bonds outstanding shall be paid and discharged in any one or more of the following ways: (a) by the payment of the principal of (including redemption premium, if any) and interest on all Bonds outstanding; or (b) by the delivery to the Bondowner Representative, for cancellation by it, of all Bonds outstanding; and if all other sums payable hereunder by the Issuer shall be paid and discharged, then and in that case this Indenture shall cease, terminate and become null and void, and the Bondowner Representative shall forthwith execute proper instruments acknowledging satisfaction of and discharging this Indenture. The fees, expenses and charges of the Bondowner Representative (including reasonable counsel fees) must be paid in order to effect such discharge. The satisfaction and discharge of this Indenture shall be without prejudice to the rights of the -38- Bondowner Representative to charge and be reimbursed by the Borrower for any expenditures which it may thereafter incur in connection herewith. The Issuer or the Borrower may at any time surrender to the Bondowner Representative for cancellation by it any Bonds previously authenticated and delivered which the Issuer or the Borrower lawfully may have acquired in any manner whatsoever, and such Bonds upon such surrender and cancellation shall be deemed to be paid and retired. ARTICLE XI MISCELLANEOUS Section 11.01. Successors of Issuer. All the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf of the Issuer, shall bind and inure to the benefit of its successors and assigns, whether so expressed or not. If any of the powers or duties of the Issuer shall hereafter be transferred by any law of the State of California, and if such transfer shall relate to any matter or thing permitted or required to be done under this Indenture by the Issuer, then the body or official who shall succeed to such powers or duties shall act and be obligated in the place and stead of the Issuer as in this Indenture provided. Section 11.02. Limitation of Rights to Parties and Bondholders. Nothing in this Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any person other than the Issuer, the Bondowner Representative, the Borrower and the holders of the Bonds issued hereunder any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Issuer, the Bondowner Representative, the Borrower and the holders of the Bonds issued hereunder. Section 11.03. Waiver of Notice. Whenever in this Indenture the giving of notice by mail or otherwise is required, the giving of such notice may be waived in writing by the person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Section 11.04. Destruction of Bonds. Whenever in this Indenture provision is made for the cancellation by the Bondowner Representative and the delivery to the Issuer of any Bonds, the Bondowner Representative may, in lieu of such cancellation and delivery, destroy such Bonds and deliver a certificate of such destruction to the Issuer. Section 11.05. Separability of Invalid Provisions. In case any one or more of the provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Indenture, but this Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Section 11.06. Notices. It shall be sufficient service of any notice, request, demand or other paper on the Issuer, the Bondowner Representative or the Borrower if the same shall, -39- except as otherwise provided herein, be duly mailed by first class mail, postage prepaid, by overnight delivery service or given by telephone or telecopier and confirmed by such mail, and to the other parties as follows: The Issuer: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, CA 94553 Attention: Community Development Bond Program Manager The Bondowner Representative prior to the Conversion Date: Wells Fargo Bank, National Association MAC #A0119-183 333 Market Street, 18th Floor San Francisco, CA 94105 Attention: Loan Administration Officer The Bondowner Representative on and after the Conversion Date: California Community Reinvestment Corporation 225 West Broadway, Suite 120 Glendale, CA 91204 Attention: President The Borrower: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541-5031 Attention: President with a copy to: Joel Hjelmaas, Counsel Wells Fargo Bank, N.A. MAC X2401-06T 1 Home Campus, 6th Floor Des Moines, IA 50328-0001 and a copy to: The Investor Limited Partner The Investor Limited Partner: Wells Fargo Affordable Housing Community Development Corporation, MAC D1053-170 301 South College Street, 17th Floor Charlotte, NC 28288 Attention: Director of Asset Management with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attention: David Dahl, Esq. -40- The Issuer, the Bondowner Representative, the Borrower and the Investor Limited Partner may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 11.07. Authorized Representatives. Whenever under the provisions of this Indenture the approval of the Issuer or the Borrower is required for any action, and whenever the Issuer or the Borrower is required to deliver any notice or other writing, such approval or such notice or other writing shall be given, respectively, on behalf of the Issuer by an Authorized Issuer Representative or on behalf of the Borrower by an Authorized Borrower Representative, and the Issuer, the Bondowner Representative and the Borrower shall be authorized to act on any such approval or notice or other writing and neither party hereto nor the Borrower shall have any complaint against the others as a result of any such action taken. Section 11.08. Evidence of Rights of Bondholders. (a) Any request, consent or other instrument required by this Indenture to be signed and executed by Bondholders may be in any number of concurrent writings of substantially similar tenor and may be signed or executed by such Bondholders in person or by agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the ownership of any Bonds, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Bondowner Representative and of the Issuer if made in the manner provided in this Section. (b) The fact and date of the execution by any person of any such request, consent or other instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the person signing such request, consent or other instrument or writing acknowledged to him the execution thereof. (c) The ownership of Bonds shall be proved by the Bond register maintained pursuant to Section 2.06 hereof. The fact and the date of execution of any request, consent or other instrument and the amount and distinguishing numbers of Bonds held by the person so executing such request, consent or other instrument may also be proved in any other manner which the Bondowner Representative may deem sufficient. The Bondowner Representative may nevertheless, in its discretion, require further proof in cases where it may deem further proof desirable. (d) Any request, consent or vote of the holder of any Bond shall bind every future holder of the same Bond and the holder of any Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Bondowner Representative or the Issuer in pursuance of such request, consent or vote. (e) In determining whether the holders of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or by any other direct or indirect obligor on the Bonds, or by any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer or any other direct or indirect obligor on the Bonds, shall be disregarded and deemed not to be outstanding for the purpose of any such -41- determination, provided that, for the purpose of determining whether the Bondowner Representative shall be protected in relying on any such demand, request, direction, consent or waiver, only Bonds which the Bondowner Representative knows to be so owned shall be disregarded. Bonds so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this subsection (e) if the pledgee shall establish to the satisfaction of the Bondowner Representative and the Issuer the pledgee’s right to vote such Bonds and that the pledgee is not a person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer or any other direct or indirect obligor on the Bonds. In case of a dispute as to such right, any decision by the Bondowner Representative taken upon the advice of counsel shall be full protection to the Bondowner Representative. Solely for purposes of the limitation expressed in this paragraph (e), the Borrower shall be deemed to be an indirect obligor on the Bonds. (f) In lieu of obtaining any demand, request, direction, consent or waiver in writing, the Bondowner Representative may call and hold a meeting of the Bondholders upon such notice and in accordance with such rules and regulations as the Bondowner Representative considers fair and reasonable for the purpose of obtaining any such action. Section 11.09. Waiver of Personal Liability. No member of the Board of Supervisors, officer, agent or employee of the Issuer, and no officer, official, agent or employee of the State of California or any department, board or agency of any of the foregoing, shall be individually or personally liable for the payment of the principal of or premium or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such person from the performance of any official duty provided by law or by this Indenture. Section 11.10. Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Indenture, is not a Business Day, such payment may be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the date provided therefor in this Indenture and, in the case of any payment, no interest shall accrue for the period from and after such date. Section 11.11. Execution in Several Counterparts. This Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts shall together constitute but one and the same instrument. Section 11.12. Governing Law. This Indenture and the Bonds shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in such State. Section 11.13. Successors. Whenever in this Indenture either the Issuer or the Bondowner Representative is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the Issuer or the Bondowner Representative shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. S-1 IN WITNESS WHEREOF, the County of Contra Costa, California, has caused this Indenture to be signed in its name and Wells Fargo Bank, National Association, in token of its acceptance of the duties of the Bondowner Representative hereunder, has caused this Indenture to be signed in its name, all as of the day and year first above written. COUNTY OF CONTRA COSTA, CALIFORNIA By: John Kopchik, Director, Department of Conservation and Development WELLS FARGO BANK, NATIONAL ASSOCIATION, as Bondowner Representative By: ____________, Vice President [Signature Page to Indenture of Trust – Hana Gardens Apartments] 03007.37:J14209 A-1 EXHIBIT A FORM OF BOND THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THIS BOND MAY NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH SECTION 2.05 OF THE INDENTURE DESCRIBED HEREIN. COUNTY OF CONTRA COSTA MULTIFAMILY HOUSING REVENUE BOND (HANA GARDENS APARTMENTS), SERIES 2016E Dated Date Maturity Date December __, 2016 __________ 1, 2042 REGISTERED OWNER: WELLS FARGO BANK, NATIONAL ASSOCIATION PRINCIPAL SUM: Up to ____________ MILLION DOLLARS The County of Contra Costa, California, a political subdivision and body corporate and politic, duly organized and existing under the laws of the State of California (herein called the “Issuer”), for value received, hereby promises to pay (but only out of Revenues as hereinafter provided) to the Registered Owner identified above or registered assigns, on the Maturity Date identified above (subject to prior redemption as provided herein) the sum of up to ____________ Million Dollars ($__________) in lawful money of the United States, with interest thereon from the date of disbursement until paid at the interest rates described below. The actual unpaid principal hereof shall be equal to the funds disbursed by the Bondowner under the Indenture (as defined below) to fund the Loan, less any portion of the principal hereof redeemed pursuant to the Indenture. Capitalized terms used in this Bond and not defined herein shall have the meanings given such terms in the Indenture referenced below, or in the Note (as such term is defined in the Indenture) made by El Cerrito Senior, L.P., a California limited partnership (the “Borrower”), to the order of the Issuer. The Issuer shall make monthly payments on this Bond of accrued interest only on funds actually disbursed by the Bondowner under the Indenture to fund the Loan to the Borrower under the Loan Agreement. This Bond shall bear interest, payable on the first Business Day (as defined in the Indenture) of each month, commencing January 2, 2017 (each, an “Interest Payment Date”) at the same rate of interest as in effect from time to time on the Note, and computed in the same manner as interest is computed from time to time on the Note, as provided in Section 2.02 of the Indenture. In addition, principal of this Bond shall be payable in installments on the same dates and in the same amounts as is the principal payable on the Loan, as evidenced by the Note, as provided in Section 2.02 of the Indenture. This Bond shall bear interest from the date to which interest has been paid on this Bond next preceding the date of authentication hereof, unless this Bond is authenticated as of an A-2 Interest Payment Date for which interest has been paid, in which event it shall bear interest from such Interest Payment Date, or unless it is authenticated on or before the first Interest Payment Date, in which event it shall bear interest from the Closing Date. In the event the Issuer fails to make the timely payment of any monthly payment, the Issuer shall pay interest on the then outstanding Balance at a default rate (the “Default Rate”) equal to the interest rate then in effect under this Bond plus five percent (5%) (solely from amounts received from the Borrower under the Loan Agreement (as defined in the Indenture), subject to any maximum rate specified in the Note or the Loan Agreement). This Bond is one of a duly authorized issue of bonds of the Issuer designated as “County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E” (the “Bonds”), in the initial aggregate principal amount of up to $__________, authorized to be issued pursuant to Chapter 7 of Part 5 of Division 31 of the Health and Safety Code of the State of California, and issued under and secured by an Indenture of Trust, dated as of December 1, 2016 (the “Indenture”), between the Issuer and Wells Fargo Bank, National Association, as the initial Bondowner Representative. Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the security, of the rights, duties and immunities of the Bondowner Representative and of the rights and obligations of the Issuer thereunder, to all of the provisions of which Indenture the holder of this Bond, by acceptance hereof, assents and agrees. The proceeds of the Bonds will be used to make a loan to the Borrower pursuant to a Loan Agreement, dated as of December 1, 2016 (the “Loan Agreement”) among the Bondowner Representative, the Issuer and the Borrower, to finance the construction of 63 units of residential rental housing located in the City of El Cerrito, California. THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER, PAYABLE SOLELY FROM AND SECURED BY THE PLEDGE OF CERTAIN REVENUES UNDER THE INDENTURE. THE BONDS DO NOT CONSTITUTE A DEBT OF THE ISSUER OR OF THE STATE OF CALIFORNIA OR OF ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE ISSUER (OTHER THAN WITH RESPECT TO THE AMOUNTS SPECIFICALLY PLEDGED THEREFOR UNDER THE INDENTURE), OR OF THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF. THE BONDS SHALL NOT CONSTITUTE A GENERAL OBLIGATION OF OR A CHARGE AGAINST THE GENERAL CREDIT OF THE ISSUER, BUT SHALL BE A SPECIAL, LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY FROM THE SOURCES DESCRIBED IN THE INDENTURE. NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM OR INTEREST ON THIS BOND AGAINST ANY PAST, PRESENT OR FUTURE SUPERVISOR, OFFICER, EMPLOYEE OR AGENT OF THE ISSUER, OR OF ANY SUCCESSOR TO THE ISSUER, AS SUCH, EITHER DIRECTLY OR THROUGH THE ISSUER OR ANY SUCCESSOR TO THE ISSUER, UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR CONSTITUTION OR BY THE ENFORCEMENT OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, AND ALL SUCH LIABILITY OF ANY SUCH SUPERVISORS, OFFICERS, EMPLOYEES OR AGENTS, AS SUCH, IS HEREBY EXPRESSLY WAIVED AND RELEASED AS A-3 A CONDITION OF, AND CONSIDERATION FOR, THE EXECUTION AND ISSUANCE OF THIS BOND. The Bonds are limited obligations of the Issuer and, as and to the extent set forth in the Indenture, are payable solely from, and secured by a pledge of and lien on, the Revenues (as that term is defined in the Indenture), consisting primarily of amounts paid by the Borrower pursuant to the Loan Agreement. The Bonds are subject to redemption prior to maturity, at a price and upon such terms as are provided in the Indenture. No notice of redemption of Bonds need be given to the registered owners of the Bonds, and the owner of this Bond, by acceptance hereof, expressly waives any requirement for any notice of redemption. If an Event of Default, as defined in the Indenture, shall occur, the principal of all Bonds may be declared due and payable upon the conditions, in the manner and with the effect provided in the Indenture. This Bond is transferable by the registered owner hereof, in person, or by its attorney duly authorized in writing, at the Principal Office of the Bondowner Representative, but only in the manner, subject to the limitations (including those contained in Section 2.05 of the Indenture) and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a new fully registered Bond will be issued to the transferee in exchange herefor. The Issuer and the Bondowner Representative may treat the registered owner hereof as the absolute owner hereof for all purposes, and the Issuer and the Bondowner Representative shall not be affected by any notice to the contrary. By its acceptance of this Bond, the registered owner hereof agrees not to sell any participatin g interests in this Bond, except as permitted by the Indenture. The Indenture contains provisions permitting the Issuer and the Bondowner Representative to execute supplemental indentures adding provisions to, or changing or eliminating any of the provisions of, the Indenture, subject to the limitations set forth in the Indenture. In the event of any inconsistency between the provisions of this Bond and the provisions of the Indenture, the provisions of the Indenture shall be controlling. The Issuer hereby certifies that all of the conditions, things and acts required to exist, to have happened and to have been performed precedent to and in connection with the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California (including the Act) and that the amount of this Bond, together with all other indebtedness of the Issuer, does not exceed any limit prescribed by the Constitution or statutes of the State of California. This Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been manually signed by the Bondowner Representative. A-4 IN WITNESS WHEREOF, the County of Contra Costa, California has caused this Bond to be executed in its name by the manual or facsimile signature of an Authorized Issuer Representative, all as of the Dated Date set forth above. COUNTY OF CONTRA COSTA By: Candace Andersen, Chair of the Board of Supervisors FORM OF CERTIFICATE OF AUTHENTICATION This is one of the Bonds described in the within-mentioned Indenture and has been authenticated and registered on this date: Dated: WELLS FARGO BANK, NATIONAL ASSOCIATION, as Bondowner Representative By Authorized Officer A-5 FORM OF ASSIGNMENT For value received, the undersigned do(es) hereby sell, assign and transfer unto (Name, Address and Tax Identification or Social Security Number of Assignee) the within Bond and do(es) hereby irrevocably constitute and appoint , attorney, to transfer the same on the registration books of the Bondowner Representative, with full power of substitution in the premises. Dated: Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a eligible guarantor. NOTICE: The signature on this assignment must correspond with the name(s) as written on the face of the within Bond in every particular without alteration or enlargement or any change whatsoever. B-1 EXHIBIT B FORM OF INVESTOR’S LETTER County of Contra Costa, California Martinez, California Wells Fargo Bank, National Association San Francisco, California Re: County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E Ladies and Gentlemen: The undersigned (the “Purchaser”), being the purchaser of $__________ principal amount of the above-referenced bonds (the “Bonds”) issued pursuant to the Indenture of Trust, dated as of December 1, 2016 (the “Indenture”), between the County of Contra Costa (the “Issuer”) and Wells Fargo Bank, National Association, as the initial Bondowner Representative (the “Bondowner Representative”), does hereby certify, represent and warrant for the benefit of the Issuer and the Bondowner Representative that: (a) The Purchaser acknowledges that the Bonds were issued for the purpose of making a mortgage loan to assist in the financing of the construction of 63 units of multifamily rental housing located in El Cerrito, California (the “Project”), as more particularly described in that certain Loan Agreement, dated as of December 1, 2016 (the “Loan Agreement”) by and among the Bondowner Representative, the Issuer and El Cerrito Senior, L.P., a California limited partnership (the “Borrower”). (b) The Purchaser is “CCRC,” an “Approved Institutional Buyer,” an affiliate of the Bondowner Representative or other permitted transferee under Section 2.05(b) of the Indenture. (c) The Purchaser has sufficient knowledge and experience in financial and business matters, including the purchase and ownership of tax-exempt obligations, and is capable of evaluating the merits and risks of its investment in the Bonds. The Purchaser is able to bear the economic risk of, and an entire loss of, an investment in the Bonds. (d) The Purchaser is acquiring the Bonds solely for its own account for investment purposes, and does not presently intend to make a public distribution of, or to resell or transfer, all or any part of the Bonds, except as may be permitted by the B-2 Indenture. The Purchaser understands that it may need to bear the risks of this investment for an indefinite time, since any sale prior to maturity may not be possible. (e) The Purchaser understands that the Bonds have not been registered under the United States Securities Act of 1933, as amended, or under any state securities laws. The Purchaser agrees that it will comply with any applicable state and federal securities laws then in effect with respect to any disposition of the Bonds by it, and further acknowledges that any current exemption from registration of the Bonds does not affect or diminish such requirements. (f) The Purchaser is familiar with the conditions, fin ancial and otherwise, of the Borrower and understands that the Borrower has no significant assets other than the Project for payment of the Bonds. Further, the Purchaser understands that the Bonds involve a high degree of risk. Specifically, and without in any manner limiting the foregoing, the Purchaser understands and acknowledges that, among other risks, the Bonds are payable solely from the Revenues. The Purchaser has been provided an opportunity to ask questions of, and the Purchaser has received answers from, representatives of the Borrower and the Bondowner Representative regarding the terms and conditions of the Bonds. The Purchaser has obtained all information requested by it in connection with the issuance of the Bonds as it regards necessary to evaluate all merits and risks of its investment in the Bonds. The Purchaser has reviewed the documents executed in conjunction with the issuance of the Bonds, including, without limitation, the Indenture, the Loan Documents and the Regulatory Agreement. (g) The Purchaser is not now and has never been controlled by, or under common control with, the Borrower. The Borrower has never been and is not now controlled by the Purchaser. The Purchaser has entered into no arrangements with the Borrower or with any affiliate in connection with the Bonds, other than as disclosed in writing to the Issuer. (h) The Purchaser has authority to purchase the Bonds and to execute this letter and any other instruments and documents required to be executed by the Purchaser in connection with the purchase of the Bonds. The individual who is signing this letter on behalf of the Purchaser is a duly appointed, qualified, and acting officer of the Purchaser and is authorized to cause the Purchaser to make the certificates, representations and warranties contained herein by execution of this letter on behalf of the Purchaser. (i) In entering into this transaction, the Purchaser has not relied upon any representations or opinions of the Issuer or the Bondowner Representative relating to the legal consequences or other aspects of its investment in the Bonds, nor has it looked to, nor expected, the Issuer to undertake or require any credit investigation or due diligence reviews relating to the Borrower, its financial condition or business operations, the Development, including the financing or management thereof, or any other matter pertaining to the merits or risks of the transactions contemplated by the Loan Agreement and the Indenture, or the adequacy of the funds pledged to the Bondowner Representative to secure repayment of the Bonds. B-3 (j) The Purchaser understands that the Bonds are not secured by any pledge of any moneys received or to be received from taxation by the Issuer, the State of California or any political subdivision thereof; that the Bonds will never represent or constitute a general obligation or a pledge of the faith and credit of the Issuer, the State of California or any political subdivision thereof; that no right will exist to have taxes levied by the State of California or any political subdivision thereof for the payment of principal and interest on the Bonds; and that the liability of the Issuer with respect to the Bonds is subject to further limitations as set forth in the Bonds and the Indenture. (k) The Purchaser has been informed that the Bonds (i) have not been and will not be registered or otherwise qualified for sale under the “Blue Sky” laws and regulations of any jurisdiction, (ii) will not be listed on any stock or other securities exchange, and (iii) will carry no rating from any rating service. (l) The Purchaser acknowledges that it has the right to sell and transfer the Bonds, including interests in the Bonds, subject to compliance with the transfer restrictions set forth in Section 2.05 of the Indenture, including in certain circumstances the requirement for the delivery to the Issuer and the Bondowner Representative of an investor’s letter in the same form as this Investor’s Letter, including this paragraph. Failure to comply with the provisions of Section 2.05 of the Indenture shall cause the purported transfer to be null and void. The Purchaser agrees to indemnify and hold harmless the Issuer with respect to any claim asserted against the Issuer that arises with respect to any sale, transfer or other disposition of the Bonds by the Purchaser or any transferee thereof in violation of the provisions of the Indenture. (m) The Purchaser agrees to indemnify and hold harmless the Bondowner Representative and the Issuer, each Supervisor, officer, director or employee of the Bondowner Representative or the Issuer, and each person who controls the Bondowner Representative or the Issuer within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended (collectively called the “Indemnified Parties”), against any and all losses, claims, damages, liabilities or expenses (including any legal or other expenses incurred by it in connection with investigating any claims against it and defending any actions) whatsoever arising out of (i) any sale, transfer or other disposition of the Bonds, or any interest therein, by the Purchaser in violation of the provisions hereof, or (ii) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact related to the Bonds or any omission or alleged omission of any material fact related to the Bonds made or furnished or omitted by the Purchaser, as the case may be; provided, however, that the Purchaser shall not be liable to an Indemnified Party in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any written information furnished by such Indemnified Party. No Indemnified Parties other than the Issuer and its Supervisors, officers and employees shall be indemnified hereunder for any losses, claims, damages or liabilities resulting from the negligence of such Indemnified Parties. No Indemnified Party shall be indemnified hereunder for any losses, claims, damages or liabilities resulting from the willful misconduct of such parties. B-4 (n) The Purchaser acknowledges that the Bonds are exempt from the requirements of Rule 15c2-12 of the Securities and Exchange Commission and that the Issuer has not undertaken to provide any continuing disclosure with respect to the Bonds. (o) The Purchaser acknowledges that interest on a Bond is not excludable from gross income of the owner thereof for federal income tax purposes for any period during which such Bond is owned by a person who is a substantial user of the facilities financed by the Bonds or any person considered to be related to such substantial user (within the meaning of Section 147(a) of the Internal Revenue Code of 1986, as amended). B-5 The Purchaser acknowledges that the sale of the Bonds to the Purchaser is made in reliance upon the certifications, representations and warranties herein by the addressees hereto. Capitalized terms used herein and not otherwise defined herein have the meanings given such terms in the Indenture. [PURCHASER] By: Name: Title: Quint & Thimmig LLP 8/23/16 8/31/16 9/27/16 11/9/16 03007.37:J14229 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: QUINT & THIMMIG LLP 900 Larkspur Landing Circle, Suite 270 Larkspur, CA 94939-1726 Attention: Paul J. Thimmig, Esq. REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS by and between the COUNTY OF CONTRA COSTA, CALIFORNIA as Issuer and EL CERRITO SENIOR, L.P., a California limited partnership, as Borrower dated as of December 1, 2016 relating to: $__________ County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E -i- TABLE OF CONTENTS Section 1. Definitions and Interpretation ..............................................................................................................1 Section 2. Representations, Covenants and Warranties of the Borrower .........................................................6 Section 3. Qualified Residential Rental Project ....................................................................................................9 Section 4. Low Income Tenants; Reporting Requirements ............................................................................... 11 Section 4A. Additional Requirements of the Issuer.............................................................................................. 13 Section 5. Tax-Exempt Status of the Bonds ......................................................................................................... 16 Section 6. Additional Requirements of the Act .................................................................................................. 16 Section 7. CDLAC Requirements ......................................................................................................................... 18 Section 8. Modification of Covenants .................................................................................................................. 19 Section 9. Indemnification..................................................................................................................................... 20 Section 10. Consideration ........................................................................................................................................ 22 Section 11. Reliance .................................................................................................................................................. 22 Section 12. Sale or Transfer of the Project ............................................................................................................. 23 Section 13. Term ....................................................................................................................................................... 24 Section 14. Covenants to Run With the Land ....................................................................................................... 25 Section 15. Burden and Benefit ............................................................................................................................... 25 Section 16. Uniformity; Common Plan .................................................................................................................. 25 Section 17. Default; Enforcement ........................................................................................................................... 25 Section 18. References to Bondowner Representative ......................................................................................... 27 Section 19. Recording and Filing ............................................................................................................................ 27 Section 20. Payment of Administration Fees ........................................................................................................ 27 Section 21. Governing Law ..................................................................................................................................... 28 Section 22. Amendments; Waivers ........................................................................................................................ 28 Section 23. Notices ................................................................................................................................................... 28 Section 24. Severability ............................................................................................................................................ 29 Section 25. Multiple Counterparts ......................................................................................................................... 29 Section 26. Third Party Beneficiaries; Enforcement ............................................................................................. 29 Section 27. The Bondowner Representative ......................................................................................................... 30 Section 28. No Interference or Impairment of Loan ............................................................................................ 30 Section 29. Limitation on Borrower Liability ....................................................................................................... 32 Section 30. Limited Liability ................................................................................................................................... 32 Section 31. Conflict With Other Affordability Agreements ............................................................................... 32 EXHIBIT A DESCRIPTION OF PROPERTY EXHIBIT B FORM OF CERTIFICATE OF COMPLIANCE (CDLAC RESOLUTION) EXHIBIT C COMPLETION CERTIFICATE EXHIBIT D CERTIFICATE AS TO COMMENCEMENT OF QUALIFIED PROJECT PERIOD EXHIBIT E FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE EXHIBIT F FORM OF VERIFICATION OF INCOME -1- REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (as supplemented and amended from time to time, this “Agreement” or this “Regulatory Agreement”), dated as of December 1, 2016, is by and between the COUNTY OF CONTRA COSTA, CALIFORNIA, a political subdivision and body corporate and politic, duly organized and existing under the laws of the State of California (together with any successor to its rights, duties and obligations, the “Issuer”), and EL CERRITO SENIOR, L.P., a California limited partnership (together with any successor to its rights, duties and obligations hereunder, the “Borrower”). R E C I T A L S : WHEREAS, the Issuer proposes to issue its County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E (the “Bonds”), pursuant to Chapter 7 of Part 5 of Division 31 (commencing with Section 52075) of the Health and Safety Code of the State of California (the “Act”), with the proceeds of the Bonds to be utilized to fund a loan (the “Loan”) to the Borrower pursuant to the terms of a Loan Agreement, dated as of the same date as the date of this Regulatory Agreement (as supplemented and amended from time to time, the “Loan Agreement”), among Wells Fargo Bank, National Association, as bondowner representative (the “Bondowner Representative”), the Issuer and the Borrower, in order to enable the Borrower to finance a portion of the costs of the construction of a multifamily rental housing facility (the “Project”) to be known as Hana Gardens Apartments, to consist of 63 housing units (inclusive of one manager’s unit) to be located at 10860 San Pablo Avenue in El Cerrito, California (the “City”), on the site described in Exhibit A hereto; and WHEREAS, in order to assure the Issuer and the owners of the Bonds that interest on the Bonds will be excluded from gross income for federal income tax purposes under the Code and to satisfy the public purposes for which the Bonds are authorized to be issued under the Act, and to satisfy the purposes of the Issuer in determining to issue the Bonds, certain limits on the occupancy of units in the Project need to continue to be satisfied and certain other requirements need to be met. A G R E E M E N T : NOW, THEREFORE, in consideration of the issuance of the Bonds by the Issuer and the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Issuer and the Borrower hereby agree as follows: Section 1. Definitions and Interpretation. Unless the context otherwise requires, the capitalized terms used herein shall have the respective meanings assigned to them in the recitals hereto, in this Section 1, in Section 1.01 of the Indenture of Trust, dated as of the same date as the date of this Regulatory Agreement, between the Issuer and Wells Fargo Bank, -2- National Association, as Bondowner Representative, or in Section 1.1 of the Loan Agreement (as defined in the Recitals to this Regulatory Agreement). “Adjusted Income” means the adjusted income of a person (together with the adjusted income of all persons of the age of 18 years or older who intend to reside with such person in one residential unit) as calculated in the manner prescribed pursuant to Section 8 of the Housing Law, or, if said Section 8 is terminated, as prescribed pursuant to said Section 8 immediately prior to its termination or as otherwise required under Section 142 of the Code and the Act. “Affiliated Party” means (a) a person whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code, (b) a person who together with the Borrower are members of the same controlled group of corporations (as defined in Section 1563(a) of the Code, except that “more than 50 percent” shall be substituted for “at least 80 percent” each place it appears therein), (c) a partnership and each of its partners (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code, and (d) an S corporation and each of its shareholders (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code. “Affordable Rents” means thirty percent (30%) of an amount equal to fifty percent (50%) of the median gross income for the Area, adjusted for household size (as described in the definition of “Low Income Tenant” in this Section 1), less a utility allowance calculated as set forth in U.S. Treasury Regulation Section 1.42-10. “Area” means the metropolitan statistical area in which the Project is located. “Area Median Gross Income” means the median gross income for the Area, as determined by the Secretary of the Treasury in a manner consistent with determination of lower-income families and area median gross income under Section 8 of the Housing Law and Section 3009a of the Housing and Economic Recovery Act of 2008, including adjustments for family size or, if programs under Section 8 are terminated, area median gross income determined under the method in effect immediately before such termination. “CDLAC” means the California Debt Limit Allocation Committee. “CDLAC Resolution” means Resolution No. 16-100 adopted by CDLAC on July 20, 2016, with respect to the Project. “Certificate of Continuing Program Compliance” means the Certificate to be filed by the Borrower with the Administrator, on behalf of the Issuer, and the Bondowner Representative pursuant to Section 4(e) hereof, which shall be substantially in the form attached to this Regulatory Agreement as Exhibit E, or in such other comparable form as may be provided by the Issuer to the Borrower, or as otherwise approved by the Issuer. “City” means the City of El Cerrito, California. -3- “Closing Date” has the meaning given to such term in the Indenture. “Completion Certificate” means the certificate of completion of the construction Project required to be delivered to the Issuer by the Borrower pursuant to Section 2(i) of this Regulatory Agreement, which shall be substantially in the form attached to this Regulatory Agreement as Exhibit C. “Completion Date” means the date of completion of the acquisition and construction of the Project, as that date shall be certified as provided in Section 2(i) of this Regulatory Agreement. “County” means the County of Contra Costa, California. “FOCUS Program” means (a) the FOCUS Compliance Verification Program (user’s guide located at www.housingcompliance.org/contracosta) utilized by the Issuer to verify the Borrower’s compliance with various requirements of this Regulatory Agreement; or (b) any similar program used by the Issuer, in the substitution for the program described in the preceding clause (a), to verify the Borrower’s compliance with various requirements of this Regulatory Agreement. “Housing Law” means the United States Act of 1937, as amended, or its successor. “HUD” means the United States Department of Housing and Urban Development, or any successor thereto. “Inducement Date” means March 1, 2016, being the date on which the Issuer adopted its Resolution No. 2016/89, expressing its intent to issue the Bonds to finance the Project. “Investor Limited Partner” means Wells Fargo Affordable Housing Community Development Corporation, a North Carolina corporation, its affiliates, successors and assigns. “Issuer Annual Fee” means: for the period from the Closing Date to but not including December 1, 2017, an amount equal to one-eighth of one percent (1/8%) of the maximum principal amount of the Bonds; and, thereafter, on each December 1 during the remainder of the Qualified Project Period, commencing December 1, 2017, an amount equal to the greater of (a) one-eighth of one percent of the then outstanding principal amount of the Bonds, or (b) $5,000.00. “Issuer Issuance Fee” means an amount equal to one-eighth of one percent (1/8%) of the maximum principal amount of the Bonds. “Low Income Tenant” means individuals or families whose Adjusted Income does not exceed fifty percent (50%) of Area Median Gross Income; provided, however, that if all the occupants of a Low Income Unit are students (as defined in Section 152(f)(2) of the Code) who fail to be described in Section 42(i)(3)(D) of the Code, the occupants of that Low Income Unit shall in no event be deemed to be “Low Income Tenants.” The Adjusted Income of individuals and Area Median Gross Income shall be determined by the Secretary of the Treasury in a -4- manner consistent with determinations of lower income families and Area Median Gross Income under Section 8 of the Housing Law (or, if such program is terminated, under such program in effect immediately before such termination). Determinations under the preceding sentence shall include adjustments for family size as prescribed under Section 8 of the Housing Law. “Low Income Units” means the units in the Project required to be rented, or held available for occupancy by, Low Income Tenants pursuant to Sections 4(a) and 6(a) hereof. “Manager” means the property manager of the Project. “Project” means the multifamily rental housing development to be known as Hana Gardens Apartments, located on the real property site described in Exhibit A hereto, and consisting of those facilities, including the Borrower’s fee interest in the real property described in Exhibit A hereto, structures, buildings, fixtures or equipment, as may at any time exist on such real property, the acquisition or construction of which is to be financed, in whole or in part, from the proceeds of the sale of the Bonds or the proceeds of any payment by the Borrower pursuant to the Loan Agreement, and any real property, structures, buildings, fixtures or equipment acquired in substitution for, as a renewal or replacement of, or a modification or improvement to, all or any part of such facilities. “Project Costs” means, to the extent authorized by the Act, the Code and the Regulations, any and all costs and expenses incurred by the Borrower with respect to the acquisition and construction of the Project, whether paid or incurred prior to or after the Closing Date, including, without limitation, costs for site preparation, the planning of housing and related facilities and improvements, the acquisition of property, the removal or demolition of existing structures, the construction of housing and related facilities and improvements, and all other work in connection therewith, and all costs of financing, including, without limitation, the cost of consultant, accounting and legal services, other expenses necessary or incident to determining the feasibility of the Project, contractors’ and Borrower’s overhead and supervisors’ fees and costs directly allocable to the Project, administrative and other expenses necessary or incident to the Project and the financing thereof (including reimbursement to any municipality, county or entity for expenditures made for the Project), and interest accrued during the construction of the Project and prior to the Completion Date. “Qualified Project Costs” means Project Costs that meet each of the following requirements: (i) the costs are properly chargeable to capital account (or would be so chargeable with a proper election by the Borrower or but for a proper election by the Borrower to deduct such costs) in accordance with general Federal income tax principles and in accordance with United States Treasury Regulations §1.103-8(a)(1), provided, however, that only such portion of interest accrued during acquisition and construction of the Project shall be eligible to be a Qualified Project Cost as is so capitalizable and as bears the same ratio to all such interest as the Qualified Project Costs bear to all Project Costs; and provided further that interest accruing after the date of completion of the construction of the Project shall not be a Qualified Project Cost; and provided still further that if any portion of the Project is being constructed by an Affiliate Party (whether as a general contractor or a subcontractor), Qualified Project Costs shall include only (A) the actual out-of-pocket costs incurred by such Affiliated Party in constructing the -5- Project (or any portion thereof), (B) any reasonable fees for supervisory services actually rendered by the Affiliated Party, and (C) any overhead expenses incurred by the Affiliated Party which are directly attributable to the work performed on the Project, and shall not include, for example, intercompany profits resulting from members of an affiliated group (within the meaning of Section 1504 of the Code) participating in the acquisition or construction of the Project or payments received by such Affiliated Party due to early completion of the Project (or any portion thereof); (ii) the costs are paid with respect to a qualified residential rental project within the meaning of Section 142(d) of the Code, (iii) the costs are paid after the earlier of 60 days prior to the Inducement Date or the date of issue of the Bonds, and (iv) if the Project Costs were previously paid and are to be reimbursed with proceeds of the Bonds, such costs were (A) costs of issuance of the Bonds, (B) preliminary capital expenditures (within the meaning of United States Treasury Regulations §1.139-2(f)(2)) with respect to the Project (such as architectural, engineering and soil testing services) incurred before commencement of acquisition or construction of the Project that do not exceed twenty percent (20%) of the issue price of the Bonds (as defined in United States Treasury Regulations §1.148-1), or (C) were capital expenditures with respect to the Project that are reimbursed no later than eighteen (18) months after the later of the date the expenditure was paid or the date the Project is placed in service (but no later than three (3) years after the expenditure is paid). Notwithstanding the foregoing, “Qualified Project Costs” shall not include costs related to the acquisition or construction of any office or commercial space not functionally related to the dwelling units in the Project. “Qualified Project Period” means the period beginning on the first date on which at least ten percent (10%) of the units in the Project are first occupied, and ending on the later of (a) the date which is 15 years after the date on which at least fifty percent (50%) of the residential units in the Project are first occupied, (b) the first day on which no Tax-Exempt private activity bond issued with respect to the Project is outstanding, (c) the date on which any assistance provided with respect to the Project under Section 8 of the United States Act of 1937 terminates, or (d) the date on which Bonds are paid in full; provided that, unless otherwise amended or modified in accordance with the terms hereof, the Qualified Project Period for purposes of this Regulatory Agreement shall be 55 years from the Closing Date, as required by the CDLAC Resolution. For purposes of clause (b), the term “private activity bond” has the meaning contemplated in Section 142(d)(2)(A)(ii) of the Code. “Regulations” means the Income Tax Regulations of the Department of the Treasury applicable under the Code from time to time. “Regulatory Agreement” means this Regulatory Agreement and Declaration of Restrictive Covenants, as it may be supplemented and amended from time to time. “Tax-Exempt” means with respect to interest on any obligations of a state or local government, including the Bonds, that such interest is excluded from gross income for federal income tax purposes; provided, however, that such interest may be includable as an item of tax preference or otherwise includable directly or indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax, under the Code. -6- “Verification of Income” means a Verification of Income in the form attached to this Regulatory Agreement as Exhibit F, or in such other form as may be provided by the Issuer to the Borrower. Unless the context clearly requires otherwise, as used in this Regulatory Agreement, words of any gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriate. The Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. The titles and headings of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. The parties to this Regulatory Agreement acknowledge that each party and their respective counsel have participated in the drafting and revision of this Regulatory Agreement. Accordingly, the parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Regulatory Agreement or any supplement or exhibit hereto. Section 2. Representations, Covenants and Warranties of the Borrower. The Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The statements made in the various certificates delivered by the Borrower to the Issuer or the Bondowner Representative on the Closing Date are true and correct. (b) The Borrower (and any person related to it within the meaning of Section 147(a)(2) of the Code) will not take or omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds of the Loan to be applied in a manner contrary to the requirements of the Loan Agreement or this Regulatory Agreement. (c) The Borrower will not take or permit, or omit to take or cause to be taken, as is appropriate, any action that would adversely affect the exclusion from gross income for federal income tax purposes of the interest on the Bonds (it being acknowledged, however, that the foregoing does not apply to Bonds owned by a “substantial user” of the Project or a “related person” to the Borrower within the meaning of Section 147(a) of the Code), or the exemption from California personal income taxation of the interest on the Bonds and, if it should take or permit, or omit to take or cause to be taken, any such action, it will take all lawful actions necessary to rescind or correct such actions or omissions promptly upon obtaining knowledge thereof. (d) The Borrower will take such action or actions as may be necessary, in the written opinion of Bond Counsel filed with the Issuer and the Borrower, to comply fully with the Act, the Code and all applicable rules, rulings, policies, procedures, Regulations -7- or other official statements promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service to the extent necessary to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds (it being acknowledged, however, that the foregoing does not apply to Bonds owned by a “substantial user” of the Project or a “related person” to the Borrower within the meaning of Section 147(a) of the Code). (e) The acquisition by the Borrower of the Project site and the commencement of the construction of the Project occurred after the date which was 60 days prior to the Inducement Date. The Borrower has incurred a substantial binding obligation to expend proceeds of the Loan pursuant to which the Borrower is obligated to expend at least five percent (5%) of the maximum principal amount of the Loan. (f) The Borrower will proceed with due diligence to complete the acquisition and construction of the Project and the full expenditure of the proceeds of the Loan. The Borrower reasonably expects to complete the Project and to expend the full $__________ principal amount of the Loan for Project Costs by February 1, 2019. (g) The Borrower’s reasonable expectations respecting the total expenditure of the proceeds of the Loan have been accurately set forth in a certificate of the Borrower delivered to the Issuer on the Closing Date. At all times, the aggregate disbursements of the proceeds of the Loan will have been applied to pay or to reimburse the Borrower for the payment of Qualified Project Costs in an amount equal to ninety-seven percent (97%) or more of such disbursements, and less than twenty-five percent (25%) of such disbursements shall have been used to pay for the acquisition of land or an interest therein. (h) The Borrower will not take or omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds from the Loan to be applied in a manner contrary to the requirements of the Loan Agreement, this Regulatory Agreement, the Act or the Code. (i) On the Completion Date, the Borrower shall deliver to the Issuer and the Bondowner Representative a duly executed Completion Certificate. (j) The Borrower acknowledges that the Issuer may appoint an Administrator other than the Issuer to administer this Regulatory Agreement and to monitor performance by the Borrower of the terms, provisions and requirements hereof. In such event, the Borrower shall comply with any reasonable request by the Issuer or the Administrator to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer. (k) Within thirty (30) days after the date on which fifty percent (50%) of the dwelling units in the Project are first occupied, the Borrower will submit to the Issuer (with a copy to the Bondowner Representative), and will cause to be recorded in the -8- County Recorder’s office, a duly executed and completed Certificate as to Commencement of Qualified Project Period in the form of Exhibit D hereto. (l) Money on deposit in any fund or account in connection with the Bonds, whether or not such money was derived from other sources, shall not be used by or under the direction of the Borrower, in a manner which would cause the Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code, and the Borrower specifically agrees that the investment of money in any such fund shall be restricted as may be necessary to prevent the Bonds from being “arbitrage bonds” under the Code. (m) All of the proceeds of the Bonds and earnings from the investment of such proceeds will be used to pay Project Costs; and no more than two percent (2%) of the proceeds of the Bonds will be used to pay issuance costs of the Bonds, within the meaning of Section 147(g) of the Code. (n) The Borrower shall file the annual certification required by Section 142(d)(7) of the Code with the Internal Revenue Service, and shall provide a copy thereof to the Administrator and the Bondowner Representative. (o) No portion of the proceeds of the Bonds shall be used to provide any airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises. No portion of the proceeds of the Bonds shall be used for an office unless the office is located on the premises of the facilities constituting the Project and unless not more than a de minimis amount of the functions to be performed at such office is not related to the day-to-day operations of the Project. (p) In accordance with Section 147(b) of the Code, the average maturity of the Bonds does not exceed 120% of the average reasonably expected economic life of the facilities being financed by the Bonds. (q) The Borrower hereby incorporates herein, as if set forth in full herein, each of the representations, covenants and warranties of the Borrower contained in the Tax Certificate. (r) The Borrower shall comply with all applicable requirements of Section 65863.10 of the California Government Code, including the requirements for providing notices in Sections (b), (c), (d) and (e) thereof, and with all applicable requirements of Section 65863.11 of the California Government Code. (s) The Borrower shall remit to Old Republic Title Company, on the Closing Date, the amount of the Initial Disbursement (as defined in the Indenture), to be used to pay Project Costs. (t) Notwithstanding the provisions of Sections 3.3(h)(iii) and (iv) and 11.44 of the Loan Agreement, and in addition thereto, the Borrower agrees to obtain a written report from an independent firm with experience in calculating excess investment -9- earnings for purposes of Section 148(f) of the Code, not less than once on or about each five year anniversary of the Closing Date and within thirty (30) days of the date the Bonds have been paid in full, determining that either (i) no excess investment earnings subject to rebate to the federal government under Section 148(f) of the Code have arisen with respect to the Bonds in the prior five-year period (or, with respect to the final such report following the repayment of the Bonds, have arisen since the last five-year report); or (ii) excess investment earnings have so arisen during the prior five-year period (or, with respect to the final such report following the repayment of the Bonds, have arisen since the last five-year report), and specifying the amount thereof that needs to be rebated to the federal government and the date by which such amount needs to be so rebated. The Borrower shall provide a copy of each report prepared in accordance with the preceding sentence to the Issuer, each time within one week of its receipt of the same from the independent firm that prepared the respective report. (u) The Borrower acknowledges, represents and warrants that it understands the nature and structure of the transactions contemplated by this Regulatory Agreement; that it is familiar with the provisions of all of the documents and instruments relating to the Bonds to which it is a party or of which it is a beneficiary; that it understands the financial and legal risks inherent in such transactions; and that it has not relied on the Issuer for any guidance or expertise in analyzing the financial or other consequences of such financing transactions or otherwise relied on the Issuer in any manner except to issue the Bonds in order to provide funds to assist the Borrower in rehabilitating, constructing and developing the Project. Section 3. Qualified Residential Rental Project. The Borrower hereby acknowledges and agrees that the Project is to be owned, managed and operated as a “qualified residential rental project” (within the meaning of Section 142(d) of the Code) for a term equal to the Qualified Project Period. To that end, and for the term of this Regulatory Agreement, the Borrower hereby represents, covenants, warrants and agrees as follows: (a) The Project will be constructed, and will be operated for the purpose of providing multifamily residential rental property. The Borrower will construct, own, manage and operate the Project as a project to provide multifamily residential rental property for seniors comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and subordinate facilities, and no other facilities, in accordance with Section 142(d) of the Code, Section 1.103 -8(b) of the Regulations and the provisions of the Act, and in accordance with such requirements as may be imposed thereby on the Project from time to time. (b) All of the dwelling units in the Project will be similarly constructed units, and each dwelling unit in the Project will contain complete, separate and distinct facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink. (c) None of the dwelling units in the Project will at any time be utilized on a transient basis and the Borrower will not rent any of the units for a period of less than -10- thirty (30) consecutive days, and none of the dwelling units in the Project will at any time be leased or rented for use as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home or trailer court or park. (d) No part of the Project will at any time during the Qualified Project Period be owned by a cooperative housing corporation, nor shall the Borrower take any steps in connection with a conversion to such ownership or use, and the Borrower will not take any steps in connection with a conversion of the Project to condominium ownership during the Qualified Project Period (except that the Borrower may obtain final map approval and the Final Subdivision Public Report from the California Bureau of Real Estate and may file a condominium plan with the City). (e) All of the dwelling units in the Project will be available for rental during the Qualified Project Period on a continuous basis to members of the general public, on a first-come first-served basis, and the Borrower will not give preference to any particular class or group in renting the dwelling units in the Project, except (i) not more than one unit may be set aside for one or more resident managers or other administrative use, or (ii) to the extent that dwelling units are required to be leased or rented to Low Income Tenants hereunder, or (iii) to the extent required under the HAP Contract, the HUD Documents, documents related to the Tax Credits and the Subordinate Loan Documents (as such capitalized terms are used or defined in the Loan Agreement), including any requirements therein for units to be rented to seniors. (f) The Project site consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the facilities of the Project comprise a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management, accounting and operation of the Project. (g) The Borrower shall not discriminate on the basis of race, creed, color, sex, source of income (e.g. AFDC, SSI), physical disability, age (except as required by any of the documents described in clause (iii) of Section 3(e) above), national origin or marital status in the rental, lease, use or occupancy of the Project or in connection with the employment or application for employment of persons for the operation and management of the Project. (h) No dwelling unit in the Project shall be occupied by the Borrower. Notwithstanding the foregoing, if the Project contains five or more dwelling units, this subsection shall not be construed to prohibit occupancy of dwelling units by one or more resident managers or maintenance personnel any of whom may be the Borrower; provided that the number of such managers or maintenance personnel is not unreasonable given industry standards in the area for the number of dwelling units in the Project. (i) The Borrower will not sell dwelling units within the Project. -11- (j) Should involuntary noncompliance with the provisions of Section 1.103-8(b) of the Regulations be caused by fire, seizure, requisition, foreclosure, transfer of title b y deed in lieu of foreclosure, change in a federal law or an action of a federal agency after the Closing Date which prevents the Issuer from enforcing the requirements of the applicable Regulations, or condemnation or similar event, the Borrower covenants that, within a “reasonable period” determined in accordance with the applicable Regulations, it will either prepay the Loan or, if permitted under the provisions of the Loan Agreement, apply any proceeds received as a result of any of the preceding events to reconstruct the Project to meet the requirements of Section 142(d) of the Code and the applicable Regulations. The Issuer hereby elects to have the Project meet the requirements of Section 142(d)(1)(A) of the Code. Section 4. Low Income Tenants; Reporting Requirements. Pursuant to the requirements of the Code and CDLAC, the Borrower hereby represents, warrants and covenants as follows: (a) During the Qualified Project Period, not less than twenty percent (20%) of the units in the Project will be occupied by, or held vacant and available for occupancy by, Low Income Tenants. For the purposes of this paragraph (a), a vacant unit which was most recently occupied by a Low Income Tenant is treated as rented and occupied by a Low Income Tenant until reoccupied, other than for a temporary period of not more than 31 days, at which time the character of such unit shall be redetermined. (b) No tenant qualifying as a Low Income Tenant shall be denied continued occupancy of a unit in the Project because, after admission, such tenant’s Adjusted Income increases to exceed the qualifying limit for Low Income Tenants. However, should a Low Income Tenant’s Adjusted Income, as of the most recent determination thereof, exceed one hundred forty percent (140%) of the applicable income limit for a Low Income Tenant of the same family size, the next available unit of comparable or smaller size in the same building (within the meaning of Section 42 of the Code) must be rented to (or held vacant and available for immediate occupancy by) a Low Income Tenant. Until such next available unit is rented to a Low Income Tenant, the former Low Income Tenant who has ceased to qualify as such shall be deemed to continue to be a Low Income Tenant for purposes of the Low Income Unit requirements of Section 4(a) hereof until the rental of an available unit of comparable or smaller size to a tenant who is not a Low Income Tenant. (c) For the Qualified Project Period, the Borrower will obtain, complete and maintain on file Verifications of Income for each Low Income Tenant, including (i) a Verification of Income dated immediately prior to the initial occupancy of such Low Income Tenant in the unit, and (ii) thereafter, an annual Verification of Income with respect to each Low Income Tenant within thirty days before or after the anniversary of such tenant’s initial occupancy of a unit in the Project. In lieu of obtaining an annual Verification of Income, the Borrower may, with respect to any particular twelve-month period ending March 1 of each year, deliver to the Administrator no later than fifteen (15) days after such date, a certification that as of March 1, no Low Income Unit in the -12- Project was occupied within the preceding twelve (12) months by a new resident whose income exceeded the limit applicable to Low Income Tenants upon admission to the Project. The Administrator may at any time and in its sole and absolute discretion notify the Borrower in writing that it will no longer accept certifications of the Borrower made pursuant to the preceding sentence and that the Borrower will thereafter be required to obtain annual Verifications of Income for tenants. The Borrower also will provide such additional information as may be required in the future by the State, by the Issuer, by CDLAC and by the Code, as the same may be amended from time to time, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures, Regulations or other official statements now or hereafter promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to Tax-Exempt obligations. Upon request of the Administrator or the Issuer, copies of Verification of Income for Low Income Tenants commencing or continuing occupation of a Low Income Unit shall be submitted to the Administrator or the Issuer, as requested. The Borrower shall make a good faith effort to verify that the income information provided by an applicant in a Verification of Income is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain pay stubs for the three most recent pay periods, (2) obtain an income tax return for the most recent tax year, (3) obtain a credit report or conduct a similar type credit search, (4) obtain an income verification from the applicant’s current employer, (5) obtain an income verification from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or (6) if the applicant is unemployed and does not have an income tax return, obtain another form of independent verification reasonably acceptable to the Issuer. (d) The Borrower will maintain complete and accurate records pertaining to the Low Income Units and will permit any duly authorized representative of the Issuer, the Administrator, the Bondowner Representative, the Department of the Treasury or the Internal Revenue Service to inspect the books and records of the Borrower pertaining to the Project, including those records pertaining to the occupancy of the Low Income Units. (e) The Borrower will prepare and submit quarterly, on or before each April 15 (for the quarterly period ending March 30), July 15 (for the quarterly period ending June 30), October 15 (for the quarterly period ending September 30) and January 15 (for the quarterly period ending December 31) during the Qualified Project Period rent rolls and other information required by the FOCUS Program. The Borrower will also prepare and submit quarterly, on or before each April 15 (for the quarterly period ending March 30), July 15 (for the quarterly period ending June 30), October 15 (for the quarterly period ending September 30) and January 15 (for the quarterly period ending December 31) during the Qualified Project Period to the Administrator (with a copy to the Bondowner Representative), a Certificate of Continuing Program Compliance executed by the Borrower stating (i) the percentage of the aggregate of the dwelling units of the Project which were occupied or deemed occupied, pursuant to subsection (a) hereof, by Low -13- Income Tenants during the preceding applicable quarterly period; and (ii) that either (A) no unremedied default has occurred under this Regulatory Agreement, or (B) a default has occurred, in which event the certificate shall describe the nature of the default in detail and set forth the measures being taken by the Borrower to remedy such default. During the Qualified Project Period, the Borrower shall submit a completed Internal Revenue Code Form 8703 or such other annual certification as required by the Code with respect to the Project, to the Secretary of the Treasury on or before March 31 of each year (or such other date as may be required by the Code). Upon the written request of the Issuer, the Borrower agrees to provide such information or reports as are necessary, in the reasonable opinion of the Issuer, to enable the Issuer to respond to reporting requirements imposed on the Issuer by the Internal Revenue Service, CDLAC or other authorities having regulatory authority with respect to the Bonds. (f) For the Qualified Project Period, all tenant leases or rental agreements shall be subordinate to this Regulatory Agreement. All leases pertaining to Low Income Units shall contain clauses, among others, wherein each tenant who occupies a Low Income Unit: (i) certifies the accuracy of the statements made in the Verification of Income; (ii) agrees that the family income and other eligibility requirements shall be deemed substantial and material obligations of the tenancy of such tenant, that such tenant will comply promptly with all requests for information with respect thereto from the Borrower, the Bondowner Representative or the Administrator on behalf of the Issuer, and that the failure to provide accurate information in the Verification of Income or refusal to comply with a request for information with respect thereto shall be deemed a violation of a substantial obligation of the tenancy of such tenant; (iii) acknowledges that the Borrower has relied on the Verification of Income and supporting information supplied by the Low Income Tenant in determining qualification for occupancy of the Low Income Unit and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease or rental agreement; and (iv) agrees that the tenant’s income is subject to annual certification in accordance with Section 4(c) hereof and that if upon any such certification such tenant’s Adjusted Income exceeds the applicable Low Income Tenant income limit under Section 4(b), such tenant may cease to qualify as a Low Income Tenant, and such tenant’s rent is subject to increase. Section 4A. Additional Requirements of the Issuer. In addition to the requirements set forth elsewhere in this Regulatory Agreement and to the extent not prohibited by the requirements set forth in Sections 4, 5 and 6 hereof, the Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 4A, as follows: (a) All tenant lists, applications and waiting lists relating to the Project shall at all times be kept separate and identifiable from any other business of the Borrower and shall be maintained as required by the Issuer, in a reasonable condition for proper audit and subject to examination upon reasonable notice (which need not be in excess of three -14- Business Days, as defined in the Indenture) and during business hours by representatives of the Issuer. (b) The Borrower shall not discriminate on the basis of race, creed, color, religion, sex, sexual orientation, marital status, national origin, source of income (e.g. AFDC and SSI), ancestry or handicap in the lease, use or occupancy of the Project (except as required to comply with Section 3(e)(iii)), or in connection with the employment or application for employment of persons for the construction, operation, or management of the Project. (c) The Borrower shall not, at initial occupancy, permit occupancy in any unit in the Project by more than (i) two persons per bedroom in the unit, plus (ii) one person; and the Borrower shall at all times offer for rent the largest unit then available for the applicable household size (being one bedroom units for 2-3 person households, and two bedroom units for 4-5 person households). The foregoing, however, shall not apply to one unit in the Project occupied by a resident manager or managers. (d) The Borrower shall pay directly to the Issuer (i) on the Closing Date the Issuer Issuance Fee and the Issuer Annual Fee for the period from the Closing Date to but not including December 1, 2017, and (ii) on each December 1, on and after December 1, 2017, the Issuer Annual Fee; without in either case any requirement for notice or billing of the amount due. In addition, the Borrower shall pay to the Issuer promptly following receipt of an invoice that reasonably identifies the relevant expenses and the amounts thereof, any out of pocket expenses incurred by the Issuer in connection with the Bonds, the Indenture, this Regulatory Agreement or the Loan Agreement, including but not limited to any costs related to the FOCUS Program. (e) The rent limits set forth in Sections 6(b) and 6(f) shall apply to all Low Income Units. In addition, the rental payments paid by Low Income Tenants for the Low Income Units shall not exceed Affordable Rents. (f) The Borrower will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the Act, or its successor. The Borrower shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Borrower apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of units by such prospective tenants. (g) The Borrower shall submit to the Issuer: (i) rent rolls and other information required by the FOCUS Program on a quarterly basis as specified in Section 4(e), and (ii) within fifteen (15) days after receipt of a written request, any other information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State. (h) The Borrower shall indemnify the Issuer as provided in Section 9 hereof and Sections 9.5, 11.38 and 11.41 of the Loan Agreement. -15- (i) The Issuer may, at its option and at its expense, at any time appoint an Administrator to administer this Agreement or any provision hereof and to monitor performance by the Borrower of all or of any of the terms, provisions and requirements hereof. Following any such appointment, the Borrower shall comply with any request by the Issuer to deliver to such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by such administrator as an agent of the Issuer. (j) The Borrower shall submit its written management policies with respect to the Project, if any, to the Issuer for its review, and shall amend such policies in any way necessary to insure that such policies comply with the provisions of this Regulatory Agreement and the requirements of the existing program under Section 8 of the Housing Law, or its successors. The Borrower shall not promulgate management policies which conflict with the provisions of the addendum to the form of lease for the Project prepared by the Housing Authority of Contra Costa County, and shall attach such addendum to leases for tenants which are holders of Section 8 certificates. (k) The Borrower shall screen and select tenants for desirability and creditworthiness at its discretion; provided, however, that the Borrower shall consider a prospective tenant’s rent history for at least the one year period prior to application as evidence of the tenant’s ability to pay the applicable rent. (l) At least six months prior to the expiration of the Qualified Project Period the Borrower shall provide by first-class mail, postage prepaid, a notice to all tenants in the Low Income Units containing (i) the anticipated date of the expiration of the Qualified Project Period, (ii) any anticipated rent increase upon the expiration of the Qualified Project Period, (iii) a statement that a copy of such notice will be sent to the Issuer, and (iv) a statement that a public hearing may be held by the Issuer on the issue and that the tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. The Borrower shall also file a copy of the above-described notice with the Community Development Bond Program Manager of the Department of Conservation and Development of the Issuer. (m) Notwithstanding Section 1461 of the Civil Code, the provisions of this Section shall run with land and may be enforced either in law or in equity by any resident, local agency, entity, or by any other person adversely affected by the Borrower’s failure to comply with the provisions of this Section. (n) The Borrower shall not participate in any refunding of the Bonds or the Loan by means of the issuance of bonds or other obligations by any governmental body other than the Issuer. (o) Each of the requirements of Sections 3, 4, 6 and 7 hereof is hereby incorporated as a specific requirement of the Issuer, whether or not required by California or federal law. (p) The requirements of Section 6 and this Section 4A shall be in effect for the Qualified Project Period. -16- Any of the foregoing requirements of the Issuer contained in this Section 4A may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 4A shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Bond Counsel that any such provision is not required by the Act and may be waived without adversely affecting the exclusion from gross income of interest on the Bonds for federal income tax purposes; and (ii) any requirement of this Section 4A shall be void and of no force and effect if the Issuer and the Borrower receive a written opinion of Bond Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax- Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other State or federal law. Section 5. Tax-Exempt Status of the Bonds. The Borrower and the Issuer, as applicable, each hereby represents, warrants and agrees as follows: (a) The Borrower and the Issuer will not knowingly take or permit, or omit to take or cause to be taken, as is appropriate, any action that would adversely affect the Tax-Exempt nature of the interest on the Bonds and, if either of them should take or permit, or omit to take or cause to be taken, any such action, it will take all lawful actions necessary to rescind or correct such actions or omissions promptly upon obtaining knowledge thereof. (b) The Borrower and the Issuer will file of record such documents and take such other steps as are necessary, in the written opinion of Bond Counsel filed with the Borrower, the Issuer and the Bondowner Representative, in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Project, including, but not limited to, the execution and recordation of this Regulatory Agreement in the real property records of the County. Section 6. Additional Requirements of the Act. In addition to the requirements set forth elsewhere in this Regulatory Agreement, so long as the Bonds are outstanding the Borrower hereby agrees to comply with each of the requirements of the Act applicable to the Project. Without limiting the foregoing, the Borrower agrees as follows: (a) As provided in Section 52080(a)(1)(A) of the Act, twenty percent (20%) or more of the completed residential units in the Project shall be occupied by, or held vacant and available for occupancy by, individuals whose income is 50 percent or less of area median income, within the meaning of Section 52080(a)(1)(A) of the Act (it being acknowledged that units required to be set aside for Low Income Tenants pursuant to Section 4(a) may be counted for purposes of satisfying the requirements of this Section 6(a) if the related Low Income Tenants otherwise satisfy the requirements of this Section 6(a)). -17- (b) The rental payments paid by the occupants of the units described in paragraph (a) of this Section (excluding any supplemental rental assistance from the state, the federal government, or any other public agency to those occupants or on behalf of those units) shall not exceed thirty percent of fifty percent of area median income. (c) The Borrower shall accept as tenants, on the same basis as all other prospective tenants, Low Income Tenants who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing program under Section 8 of the Housing Law. The selection criteria applied to certificate holders under Section 8 of the Housing Law shall not be more burdensome than the criteria applied to all other prospective tenants. (d) The Borrower shall ensure that units occupied as required by paragraph (a) of this Section are of comparable quality and offer a range of sizes and number of bedrooms comparable to those units which are available to other tenants. (e) As provided in Section 52080(e) of the Act, the Project may be syndicated after prior written approval of the Issuer. The Issuer shall grant that approval only after it determines that the terms and conditions of the syndication (1) shall not reduce or limit any of the requirements of the Act or regulations adopted or documents executed pursuant to the Act, (2) shall not cause any of the requirements in this Agreement to be subordinated to the syndication agreement, or (3) shall not result in the provision of fewer assisted units, or the reduction of any benefits or services, than were in existence prior to the syndication agreement. The Issuer hereby acknowledges that this Section 6(e) does not apply to any syndication of federal tax credits for the Project. (f) Following the expiration or termination of the Qualified Project Period, except in the event of foreclosure and redemption of the Bonds, deed in lieu of foreclosure, eminent domain, or action of a federal agency preventing enforcement, units required to be reserved for occupancy pursuant to Section 6(a) shall remain available to any eligible household occupying a reserved unit at the date of such expiration or termination, at a rent not greater than the amount required by Section 6(b), until the earliest of any of the following occur: (1) The household’s income exceeds 140 percent of the maximum eligible income specified in Section 6(a). (2) The household voluntarily moves or is evicted for “good cause.” “Good cause” for the purposes of this section means the nonpayment of rent or allegation of facts necessary to prove major, or repeated minor, violations of material provisions of the occupancy agreement which detrimentally affect the health, safety, occupancy or quiet enjoyment of other persons or the structure, the fiscal integrity of the Project or the purposes or special programs of the Project. (3) Thirty years after the date of commencement of the Qualified Project Period. -18- (4) The Borrower pays the relocation assistance and benefits to tenants as provided in subdivision (b) of Section 7264 of the California Government Code. (g) Except in the event of foreclosure and redemption of the Bonds, deed in lieu of foreclosure, eminent domain, or action of a federal agency preventing enforcement, during the three years prior to expiration of the Qualified Project Period, the Borrower shall continue to make available to eligible households reserved units that have been vacated to the same extent that nonreserved units are made available to noneligible households. (h) This Section shall not be construed to require the Issuer to monitor the Borrower’s compliance with the provisions of paragraph (f), or that the Issuer shall have any liability whatsoever in the event of the failure by the Borrower to comply with any of the provisions of this Agreement. (i) The covenants and conditions of this Regulatory Agreement shall be binding upon successors in interest of the Borrower. (j) This Regulatory Agreement shall be recorded in the office of the county recorder of the County, and shall be recorded in the grantor-grantee index to the names of the Borrower as grantor and to the name of the Issuer as grantee. Section 7. CDLAC Requirements. The Borrower shall comply with the conditions set forth in Exhibit A to the CDLAC Resolution (the “CDLAC Conditions”), as they may be modified or amended from time to time, which conditions are incorporated herein by reference and are made a part hereof. The Borrower shall prepare and submit to CDLAC (with a copy to the Issuer), at the times required by CDLAC, (a) a Certificate of Compliance in substantially the form attached hereto as Exhibit B hereto (or in such other form as CDLAC may require), executed by an authorized representative of the Borrower; and (b) such other form or forms as may be required by CDLAC related to the Borrower’s compliance with the CDLAC Conditions. The Borrower acknowledges that the CDLAC Conditions include the following: (a) 62 of the units in the Project be restricted for a term of 55 years, all of which units must be rented or held vacant and available for rental for persons or families whose income is at 50% or below of the Area Median Gross Income. (b) A minimum of $10,546,243 of public funds will be expended for the Project. (c) The Project and/or the financing must comply with the requirements in paragraphs 9 thru 14, 16, 24, 25, 26c. and 27c. of Exhibit A to the CDLAC Resolution. The Borrower will promptly provide any information requested by the Issuer in order for the Issuer to complete any Annual Applicant Public Benefit and On-going Compliance Self Certification or otherwise comply with any regulations of CDLAC applicable to the CDLAC -19- Resolution, the CDLAC Conditions, the Bonds or the Project, including but not limited to Section 5144 of Article 11 of the CDLAC regulations. The requirements of this Section 7 may be waived in writing by CDLAC in its sole and absolute discretion, without the consent of the Issuer. CDLAC and the Issuer each shall have the right (but not the obligation) to enforce the CDLAC Conditions and to pursue an action for specific performance or other available remedy at law or in equity, provided that any such action or remedy shall not materially adversely affect the interests and rights of the owners of the Bonds. Section 8. Modification of Covenants. The Borrower and the Issuer hereby agree as follows: (a) To the extent any amendments to the Act, the Regulations or the Code shall, in the written opinion of Bond Counsel filed with the Issuer, the Bondowner Representative and the Borrower, impose requirements upon the ownership or operation of the Project more restrictive than those imposed by this Regulatory Agreement, and if such requirements are applicable to the Project, this Regulatory Agreement shall be deemed to be automatically amended to impose such additional or more restrictive requirements. (b) To the extent that the Act, the Regulations or the Code, or any amendments thereto, shall, in the written opinion of Bond Counsel filed with the Issuer, the Bondowner Representative and the Borrower, impose requirements upon the ownership or operation of the Project less restrictive than imposed by this Regulatory Agreement, this Regulatory Agreement may be amended or modified to provide such less restrictive requirements, but only by written amendment signed by the Issuer, in its sole discretion, and the Borrower, and only upon receipt by the Issuer of the written opinion of Bond Counsel to the effect that such amendment will not affect the Tax-Exempt status of interest on the Bonds or violate the requirements of the Act, and is otherwise in accordance with Section 22 hereof. -20- (c) The Borrower and the Issuer shall execute, deliver and, if applicable, file of record any and all documents and instruments necessary to effectuate the intent of this Section 8, and each of the Borrower and the Issuer hereby appoints the Bondowner Representative as its true and lawful attorney-in-fact to execute, deliver and, if applicable, file of record on behalf of the Borrower or the Issuer, as is applicable, any such document or instrument (in such form as may be approved by Bond Counsel, as evidenced by receipt of the opinion required by paragraph (b) above) if either the Borrower or the Issuer defaults in the performance of its obligations under this subsection (c); provided, however, that unless directed in writing by the Issuer or the Borrower, the Bondowner Representative shall take no action under this subsection (c) without first notifying the Borrower or the Issuer, or both of them, as is applicable, and without first providing the Borrower or the Issuer, or both, as is applicable, an opportunity to comply with the requirements of this Section 8. Nothing in this subsection (c) shall be construed to allow the Bondowner Representative to execute an amendment to this Regulatory Agreement on behalf of the Issuer. Notwithstanding any other provision of this Regulatory Agreement, whenever an opinion of Bond Counsel is required or requested to be delivered hereunder after the Closing Date, the Bondowner Representative, the Issuer and the Borrower shall accept (unless otherwise directed in writing by the Issuer) an opinion of Bond Counsel in such form and with such disclaimers as may be required so that such opinion will not be treated as a “covered opinion” for purposes of the Treasury Department regulations governing practice before the Internal Revenue Service (Circular 230), 31 CFR Part 10. Section 9. Indemnification. (a) To the fullest extent permitted by law, the Borrower agrees to indemnify, hold harmless and defend the Issuer, the Bondowner Representative, and each of their respective past, present and future Supervisors, officers, directors, officials, employees and agents (collectively, the “Indemnified Parties”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to: (i) the Bonds, the Indenture, the Loan Agreement, the Loan or this Regulatory Agreement or the execution or amendment hereof or thereof or in connection with transactions contemplated hereby or thereby, including the issuance, sale or resale of the Bonds; (ii) any act or omission of the Borrower or any of its agents, contractors, servants, employees, tenants or licensees in connection with the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Project or any part thereof; -21- (iii) any lien or charge upon payments by the Borrower to the Issuer and the Bondowner Representative hereunder or under the Loan Agreement, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the Issuer in respect of any portion of the Project; (iv) any violation of the provisions of Article 9 of the Loan Agreement; (v) the defeasance and/or redemption, in whole or in part, of the Bonds; (vi) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in any offering statement or disclosure or continuing disclosure document for the Bonds or any of the documents relating to the Bonds, or any omission or alleged omission from any offering statement or disclosure or continuing disclosure document for the Bonds of any material fact necessary to be stated therein in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; (vii) any declaration of taxability of interest on the Bonds, or allegations that interest on the Bonds is taxable or any regulatory audit or inquiry regarding whether interest on the Bonds is taxable; or (viii) the Bondowner Representative’s acceptance or administration of the Indenture, or the exercise or performance of any of its powers or duties thereunder or under any of the documents relating to the Bonds to which it is a party; except (A) in the case of the foregoing indemnification of the Bondowner Representative or any of its respective Supervisors, officers, directors, officials, employees and agents, to the extent such damages are caused by the gross negligence or willful misconduct of an Indemnified Party; or (B) in the case of the foregoing indemnification of the Issuer or any of its officers, members, directors, officials, employees and agents, to the extent, with respect to any such Indemnified Party, such damages are caused by the willful misconduct of the respective Indemnified Party seeking indemnification. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Borrower shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the Borrower if in the judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel. -22- (b) The rights of any persons to indemnity hereunder and rights to payment of fees and reimbursement of expenses pursuant to Section 4A(a), this Section 9 and Section 20 shall survive the final payment or defeasance of the Bonds and in the case of the Bondowner Representative any resignation or removal. The provisions of this Section shall survive the termination of this Regulatory Agreement. (c) The Borrower acknowledges that its obligations under this Section 9 are not subject to the non-recourse provisions of the Loan Agreement or Section 29 hereof (collectively, the “Non-Recourse Provisions”); provided, however, that nothing contained in this Section 9 shall otherwise change or modify the applicability of the Non-Recourse Provisions to the Borrower’s other obligations under this Regulatory Agreement, or cause the obligation of the Borrower to pay principal and interest on the Loan or amounts owing with respect to the Bonds to be a recourse obligation of the Borrower. (d) The obligations of the Borrower under this Section are independent of any other contractual obligation of the Borrower to provide indemnity to the Issuer or the Bondowner Representative or otherwise, and the obligation of the Borrower to provide indemnity hereunder shall not be interpreted, construed or limited in light of any other separate indemnification obligation of the Borrower. The Issuer and the Bondowner Representative shall be entitled simultaneously to seek indemnity under this Section and any other provision under which it is entitled to indemnity. Section 10. Consideration. The Issuer has agreed to issue the Bonds to provide funds to lend to the Borrower to finance the acquisition and construction of the Project, all for the purpose, among others, of inducing the Borrower to acquire, construct and operate the Project. In consideration of the issuance of the Bonds by the Issuer, the Borrower has entered into this Regulatory Agreement and has agreed to restrict the uses to which this Project can be put on the terms and conditions set forth herein. Section 11. Reliance. The Issuer and the Borrower hereby recognize and agree that the representations and covenants set forth herein may be relied upon by all persons interested in the legality and validity of the Bonds, in the exemption from State personal income taxation of interest on the Bonds and in the Tax-Exempt status of the interest on the Bonds. In performing their duties and obligations hereunder, the Issuer and the Bondowner Representative may rely upon statements and certificates of the Low Income Tenants, and upon audits, if any, of the books and records of the Borrower pertaining to the Project. In addition, the Issuer and the Bondowner Representative may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Issuer or the Bondowner Representative hereunder in good faith and in conformity with such opinion. In determining whether any default or lack of compliance by the Borrower exists under this Regulatory Agreement, the Issuer shall not be required to conduct any investigation into or review of the operations or records of the Borrower and may rely solely on any written notice or certificate delivered to the Issuer or the Bondowner Representative by the Borrower with respect to the occurrence or absence of a default unless it knows that the notice or certificate is erroneous or misleading. -23- Section 12. Sale or Transfer of the Project. For the Qualified Project Period, the Borrower shall not, except as provided below and in accordance with the Loan Agreement and the Deed of Trust, sell, transfer or otherwise dispose of the Project, in whole or in part, without the prior written consent of the Issuer, which consent shall be given as promptly as practicable following: (A) the receipt by the Issuer of evidence acceptable to the Issuer that (1) the Borrower shall not be in default hereunder or under the Loan Agreement (which may be evidenced by a certificate of the Borrower) or the purchaser or assignee undertakes to cure any defaults of the Borrower to the reasonable satisfaction of the Issuer; (2) the continued operation of the Project shall comply with the provisions of this Regulatory Agreement; (3) either (a) the purchaser or assignee or its property manager has at least three years’ experience in the ownership, operation and management of similar size rental housing projects, and at least one year’s experience in the ownership, operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local government requirements applicable to such projects, or (b) the purchaser or assignee agrees to retain a property management firm with the experience and record described in subclause (a) above, or (c) the transferring Borrower or its management company will continue to manage the Project for at least one year following such transfer and during such period will provide training to the transferee and its manager in the responsibilities relating to the Low Income Units; and (4) the person or entity which is to acquire the Project does not have pending against it, and does not have a history of, building code violations or significant and material complaints concerning the maintenance, upkeep, operation, and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies; (B) the execution by the purchaser or assignee of any document requested by the Issuer with respect to the assumption of the Borrower’s obligations under this Regulatory Agreement and the Loan Agreement, including without limitation an instrument of assumption hereof, and delivery to the Issuer of an opinion of such purchaser or assignee’s counsel to the effect that each such document and this Regulatory Agreement are valid, binding and enforceable obligations of such purchaser or assignee; (C) receipt by the Issuer of an opinion of Bond Counsel addressed to the Issuer and the Bondowner Representative to the effect that any such sale, transfer or other disposition will not adversely affect the Tax-Exempt status of interest on the Bonds; (D) receipt by the Issuer and Bondowner Representative of all fees and/or expenses then currently due and payable to the Issuer and Bondowner Representative; and (E) satisfaction of such other conditions or matters as are set forth in the Loan Agreement and the Deed of Trust. The Issuer hereby consents to a transfer of the Project by the Borrower to its general partner or its affiliate, if the Issuer receives the documents listed in the preceding sentence. It is hereby expressly stipulated and agreed that any sale, transfer or other disposition of the Project in violation of this Section 12 shall be null, void and without effect, shall cause a reversion of title to the Borrower, and shall be ineffective to relieve the Borrower of its obligations under this Regulatory Agreement. Nothing in this Section shall affect any provision of any other document or instrument between the Borrower and any other party which requires the Borrower to obtain the prior written consent of such other party in order to sell, transfer or otherwise dispose of the Project. Upon any sale or other transfer which complies with this Regulatory Agreement, the Borrower shall be fully and automatically released from its obligations hereunder to the extent such obligations have been assumed by the transferee of the Project. Any transfer of the Project to any entity, whether or not affiliated with the Borrower, shall be subject to the provisions of this Section 12, except that no consent of the Issuer shall be required in the case of any transfer of the Project to a wholly owned subsidiary of -24- the Borrower if any applicable conditions set forth in the Loan Agreement and any conditions set forth in the Deed of Trust are satisfied. Notwithstanding anything contained in this Section 12 to the contrary, neither the consent of the Issuer nor the delivery of items (A) through (E) of the preceding paragraph shall be required in the case of (a) the execution, delivery and recordation by Borrower of any mortgage or deed of trust encumbering all or any part of the Project, or (b) a foreclosure or deed in lieu of foreclosure by the Bondowner Representative whereby the Bondowner Representative or a purchaser at a foreclosure sale becomes the owner of the Project, and nothing contained in this Section 12 shall otherwise affect the right of the Bondowner Representative or a purchaser at a foreclosure sale to foreclose on the Project or to accept a deed in lieu of foreclosure. The Issuerʹs consent otherwise required by the preceding paragraph shall not be required in connection with any purchase of the Project by a partner of the Borrower as allowed for in the Borrowerʹs partnership agreement, or a sale or transfer of the Project to any wholly owned subsidiary of Eden Housing, Inc. In addition, the provisions of this Section 12 shall not apply to (i) the replacement of the initial managing general partner of the Borrower by an entity formed by or that is a subsidiary of the initial managing general partner of the Borrower, (ii) any transfer of limited partnership interests in the Borrower, (iii) any transfer of interests in any limited partner of the Borrower, or (iv) any transfer of interests pursuant to the provisions of the Borrower’s partnership agreement as in effect from time to time, including but not limited to the removal of a general partner of the Borrower and replacement thereof by an affiliate of a limited partner of the Borrower. For the Qualified Project Period, the Borrower shall not: (1) except pursuant to the provisions of this Regulatory Agreement, the Loan Agreement and the Deed of Trust (and upon receipt by the Borrower of an opinion of Bond Counsel that such action will not adversely affect the Tax-Exempt status of interest on the Bonds), permit the conveyance or transfer of any part of the Project; (2) demolish any part of the Project or substantially subtract from any real or personal property of the Project, except to the extent that what is removed is replaced with comparable property; or (3) permit the use of the dwelling accommodations of the Project for any purpose except rental residences. Section 13. Term. This Regulatory Agreement and all and several of the terms hereof shall become effective upon its execution and delivery, and shall remain in full force and effect for the period provided herein and shall terminate as to any provision not otherwise provided with a specific termination date and shall terminate in its entirety at the end of the Qualified Project Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the Bonds and discharge of the Indenture, the Loan Agreement and the Deed of Trust. The terms of this Regulatory Agreement to the contrary notwithstanding, this Regulatory Agreement shall terminate and be of no further force and effect in the event of involuntary noncompliance with the provisions of this Regulatory Agreement caused by fire, seizure, requisition, change in a federal law or an action of a federal agency after the Closing Date that prevents the Issuer and the Bondowner Representative from enforcing such provisions, or condemnation, foreclosure, transfer of title by deed in lieu of foreclosure, or a similar event, but only if, within a reasonable period, either the Bonds are retired or amounts -25- received as a consequence of such event are used to provide a project which meets the requirements hereof; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained herein shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any related person (within the meaning of Section 1.103-10(e) of the Regulations) obtains an ownership interest in the Project for federal income tax purposes. The Borrower hereby agrees that, following any foreclosure, transfer of title by deed in lieu of foreclosure or similar event, neither the Borrower nor any such related person as described above will obtain an ownership interest in the Project for federal tax purposes. Upon the termination of the terms of this Regulatory Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with its terms. Section 14. Covenants to Run With the Land. Notwithstanding Section 1461 of the California Civil Code, the Borrower hereby subjects the Project to the covenants, reservations and restrictions set forth in this Regulatory Agreement. The Issuer and the Borrower hereby declare their express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Borrower’s successors in interest to the Project; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments. Section 15. Burden and Benefit. The Issuer and the Borrower hereby declare their understanding and intent that the burdens of the covenants set forth herein touch and concern the land in that the Borrower’s legal interest in the Project is rendered less valuable thereby. The Issuer and the Borrower hereby further declare their understanding and intent that the benefits of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by Low Income Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which the Bonds were issued. Section 16. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use of the site on which the Project is located. Section 17. Default; Enforcement. If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in this Regulatory Agreement, and if such default remains uncured for a period of thirty (30) days after notice thereof shall have been given by the Issuer or the Bondowner Representative to the Borrower (with a copy to the Investor Limited Partner), or for a period of thirty (30) days from the date the Borrower should, with due diligence, have discovered such default, then the Issuer or the Bondowner Representative, acting on its own behalf or on behalf of the Issuer (to the -26- extent directed in writing by the Issuer, subject to the provisions of the Indenture), shall declare an “Event of Default” to have occurred hereunder; provided, however, that if the default is of such a nature that it cannot be corrected within thirty (30) days, such default shall not constitute an Event of Default hereunder so long as (i) the Borrower institutes corrective action within said thirty (30) days and diligently pursues such action until the default is corrected, and (ii) in the opinion of Bond Counsel, the failure to cure said default within thirty (30) days will not adversely affect the Tax-Exempt status of interest on the Bonds. The Issuer and the Bondowner Representative shall have the right to enforce the obligations of the Borrower under this Regulatory Agreement within shorter periods of time than are otherwise provided herein if necessary in the opinion of Bond Counsel to insure compliance with the Act or the Code. Any limited partner of the Borrower shall have the right but not the obligation to cure any Event of Default, and the Issuer and the Bondowner Representative agree to accept any cure tendered by any such limited partner on behalf of the Borrower within any cure period specified above. Following the declaration of an Event of Default hereunder the Issuer, or the Bondowner Representative may, at their respective options, take any one or more of the following steps, in addition to all other remedies provided by law or equity: (i) by mandamus or other suit, action or proceeding at law or in equity, including injunctive relief, require the Borrower to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the rights of the Issuer or the Bondowner Representative hereunder; (ii) have access to and inspect, examine and make copies of all of the books and records of the Borrower pertaining to the Project; (iii) take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Borrower hereunder; (iv) declare a default under the Loan Agreement and (subject to any applicable cure periods set forth in the Loan Agreement) proceed with any remedies provided therein; and (v) order and direct the Borrower in writing to terminate the then Manager of the Project and to select a replacement Manager reasonably satisfactory to the Issuer within 60 days of such written direction, and to notify the Issuer in writing of the identity of the replacement Manager (the Issuer hereby pre-approves Wells Fargo Affordable Housing Community Development Corporation as a replacement Manager). The Borrower hereby agrees that specific enforcement of the Borrower’s agreements contained herein is the only means by which the Issuer may fully obtain the benefits of such agreements made by the Borrower herein, and the Borrower therefore agrees to the imposition of the remedy of specific performance against it in the case of any Event of Default by the Borrower hereunder. -27- The Bondowner Representative shall have the right (but no obligation), in accordance with this Section and the provisions of the Indenture, without the consent or approval of the Issuer, to exercise any or all of the rights or remedies of the Issuer hereunder; provided that prior to taking any such action the Bondowner Representative shall give the Issuer written notice of its intended action. After the Indenture has been discharged, the Issuer may act on its own behalf to declare an “Event of Default” to have occurred and to take any one or more of the steps specified hereinabove to the same extent and with the same effect as if taken by the Bondowner Representative. All fees, costs and expenses of the Bondowner Representative and the Issuer incurred in taking any action pursuant to this Section shall be the sole responsibility of the Borrower. No breach or default under this Regulatory Agreement shall defeat or render invalid the Deed of Trust or any like encumbrance upon the Project or any portion thereof given in good faith and for value. Section 18. References to Bondowner Representative. After the date on which no Bonds remain outstanding under the Indenture, all references to the Bondowner Representative in this Regulatory Agreement shall be deemed references to the Issuer. Section 19. Recording and Filing. (a) The Borrower shall cause this Regulatory Agreement and all amendments and supplements hereto and thereto, to be recorded and filed in the real property records of the County and in such other places as the Issuer or the Bondowner Representative may reasonably request. The Borrower shall pay all fees and charges incurred in connection with any such recording. (b) The Borrower and the Issuer will file of record such other documents and take such other steps as are necessary, in the written opinion of Bond Counsel filed with the Issuer and the Bondowner Representative, in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Project. (c) The Borrower hereby covenants to include or reference the requirements and restrictions contained in this Regulatory Agreement in any documents transferring any interest in the Project to another person (other than in any document granting a security interest to the Bondowner Representative and, provided, however, that no such assignment shall be required in connection with the transfer of the Project to the Bondowner Representative or to the Bondholders by foreclosure, deed in lieu of foreclosure or comparable conversion of the Loan) to the end that such transferee has notice of, and is bound by, such restrictions, and to obtain the agreement from any transferee to abide by all requirements and restrictions of this Regulatory Agreement. Section 20. Payment of Administration Fees. Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Indenture, throughout the term of this Regulatory Agreement, the Borrower shall continue to pay to the Issuer its fees described in Section 4.A.(d) and in the event of default, to the Administrator, the Issuer and to the Bondowner Representative reasonable compensation for any services rendered by either of them hereunder -28- and reimbursement for all expenses reasonably incurred by any of them in connection therewith. Section 21. Governing Law. This Regulatory Agreement shall be governed by the laws of the State applicable to contracts made and performed in the State. Section 22. Amendments; Waivers. (a) Except as otherwise provided in Section 8 above, this Regulatory Agreement may be amended only by a written instrument executed by the parties hereto or their successors in title and the Bondowner Representative, and duly recorded in the real property records of the County, and only upon receipt by the Issuer and the Bondowner Representative of an opinion from Bond Counsel that such amendment will not adversely affect the Tax-Exempt status of interest on the Bonds and is not contrary to the provisions of the Act. (b) Anything to the contrary contained herein notwithstanding, the Issuer and the Borrower hereby agree to amend this Regulatory Agreement to the extent required, in the opinion of Bond Counsel, in order that interest on the Bonds remain Tax-Exempt. The parties requesting such amendment shall notify the other parties to this Regulatory Agreement and the Bondowner Representative of the proposed amendment, with a copy of such requested amendment to Bond Counsel and a request that such Bond Counsel render to the Issuer and the Bondowner Representative an opinion as to the effect of such proposed amendment upon the Tax-Exempt status of interest on the Bonds. This provision shall not be subject to any provision of any other agreement requiring any party hereto to obtain the consent of any other person in order to amend this Regulatory Agreement. (c) Any waiver of, or consent to, any condition under this Regulatory Agreement must be expressly made in writing. Section 23. Notices. Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, overnight delivery, certified or registered mail, postage prepaid, return receipt requested, or by telecopy, in each case at the respective addresses set forth below or at such other addresses as may be specified in writing by the parties hereto. If to the Issuer or the Administrator: County of Contra Costa Department of Conservation and Development 30 Muir Road Martinez, California 94533 Attention: Community Development Bond Program Manager If to the Bondowner Representative: Wells Fargo Bank, National Association 333 Market Street, 18th Floor MAC A0119-183 San Francisco, California 94105 Attention: Loan Administration Officer -29- The Borrower: El Cerrito Senior, L.P. c/o Eden Development, Inc. 22645 Grand Street Hayward, CA 94541-5031 Attn: President with a copy to: Joel Hjelmaas, Counsel Wells Fargo Bank, N.A. MAC X2401-06T 1 Home Campus, 6th Floor Des Moines, IA 50328-0001 and a copy to: The Investor Limited Partner The Investor Limited Partner: Wells Fargo Affordable Housing Community Development Corporation, MAC D1053-170 301 South College Street, 17th Floor Charlotte, NC 28288 Attn: Director of Asset Management with a copy to: Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102 Attention: David Dahl, Esq. A copy of each notice hereunder to the Issuer or the Administrator shall also be given to the Bondowner Representative. The Issuer, the Administrator, the Bondowner Representative, the Borrower and the Investor Limited Partner may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Notice shall be deemed given on the date evidenced by the postal or courier receipt or other written evidence of delivery or electronic transmission. Section 24. Severability. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 25. Multiple Counterparts. This Regulatory Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 26. Third Party Beneficiaries; Enforcement. The Bondowner Representative, the Investor Limited Partner and CDLAC are intended to be and shall each be a third party beneficiary of this Regulatory Agreement. CDLAC shall have the right (but not the obligation) to enforce the CDLAC Conditions (as defined in Section 7) and to pursue an action for specific performance or other available remedy at law or in equity in accordance with Section 17 hereof, provided that any such action or remedy shall not materially adversely affect the interests and rights of the owners of the Bonds. Pursuant to Section 52080(k) of the Act, the requirements of -30- Section 6 may be enforced either in law or in equity by any resident, local agency, entity, or by any other person adversely affected by the Borrower’s failure to comply with the requirements of that Section. Section 27. The Bondowner Representative. The Bondowner Representative shall be entitled, but shall have no duty, to act with respect to enforcement of the Borrower’s performance hereunder. The Bondowner Representative, either on its own behalf or as the agent of and on behalf of the Issuer, may, in its sole discretion, act hereunder and any act required to be performed by the Issuer as herein provided shall be deemed taken if such act is performed by the Bondowner Representative. In connection with any such performance, all provisions of the Indenture relating to the rights, privileges, powers and protections of the Bondowner Representative shall apply with equal force and effect to all actions taken (or omitted to be taken) by the Bondowner Representative in connection with this Regulatory Agreement. Neither the Bondowner Representative nor any of its officers, directors or employees shall be liable for any action taken or omitted to be taken by it hereunder or in connection herewith except for its or their own negligence or willful misconduct. The Bondowner Representative may consult with legal counsel selected by it (the reasonable fees of which counsel shall be paid by the Borrower) and any action taken or suffered by it reasonably and in good faith in accordance with the opinion of such counsel shall be full justification and protection to it. The Bondowner Representative may at all times assume compliance with this Regulatory Agreement unless otherwise notified in writing by or on behalf of the Issuer, or unless it has actual knowledge of noncompliance. After the date on which no Bonds remain outstanding as provided in the Indenture, the Bondowner Representative shall have no further rights, duties or responsibilities under this Regulatory Agreement, and all references to the Bondowner Representative in this Regulatory Agreement shall be deemed references to the Issuer. Section 28. No Interference or Impairment of Loan. Notwithstanding anything herein to the contrary, (i) the occurrence of an event of default under this Regulatory Agreement shall not, under any circumstances whatsoever, be deemed or constitute a default under the Loan Documents (as defined in the Loan Agreement), except as may be otherwise specified in the Loan Documents, and shall not impair, defeat or render invalid the lien of the Deed of Trust and (ii) neither of the Issuer nor any other person (other than the Bondowner Representative) shall: (a) initiate or take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal of, interest on, or other amounts due and payable under, the Loan; (b) interfere with or attempt to interfere with or influence the exercise by the Bondowner Representative of any of its rights under the Loan Agreement, including, without limitation, the Bondowner Representative remedial rights under the Loan Documents upon the occurrence of an event of default by the Borrower under the Loan; or -31- (c) upon the occurrence of an event of default under the Loan Agreement, take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Loan, it being understood and agreed that the Issuer may not, without the prior written consent of the Bondowner Representative, on account of any default under this Regulatory Agreement, seek, in any manner, to cause the Loan to become due and payable, to enforce the Loan Agreement or to foreclose on the Deed of Trust or cause the Bondowner Representative to redeem the Bonds or to declare the principal of the Bonds and the interest accrued on the Bonds to be immediately due and payable, or cause the Bondowner Representative to foreclose or take any other action under the Bond Documents (as defined in the Loan Agreement), the Loan Documents or any other documents which action would or could have the effect of achieving any one or more of the foregoing actions, events or results. No person other than the Bondowner Representative shall have the right to declare the principal balance of the Loan to be immediately due and payable or to initiate foreclosure or other like action. The forgoing prohibitions and limitations shall not in any way limit the rights of the Issuer to specifically enforce this Regulatory Agreement or to seek injunctive relief in order to provide for the operation of the Project in accordance with the requirements of the Code and the Act, and shall not be construed to limit the rights of the Issuer to enforce its rights against the Borrower under the indemnification provisions of the Regulatory Agreement provided that the prosecution of a claim for indemnification shall not cause the Borrower to file a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Borrower under any applicable liquidation, insolvency, bankruptcy, construction, composition, reorganization, conservation or other similar law in effect now or in the future. Notwithstanding anything in this Regulatory Agreement to the contrary, any right of the Issuer to take any action at law or in equity to enforce the obligations, covenants and agreements of the Borrower under this Regulatory Agreement which includes any claim for indemnification, damages or any other monetary obligation sought to be enforced shall be subject and subordinate in all respects to the repayment in full of all amounts due on the Loan under the Loan Documents. All obligations of the Borrower under this Regulatory Agreement for the payment of money, including claims for indemnification and damages shall not be secured by or in any manner constitute a lien on the Project, and the Issuer shall not have the right to enforce such obligations other than directly against the Borrower pursuant to Section 17 of this Regulatory Agreement. No subsequent owner of the Project shall be liable or obligated for the breach or default of any obligation of any prior owner unless specifically assumed in writing by a subsequent owner, including, but not limited to, any payment or indemnification obligation. Such obligations shall be personal to the person who was the owner of the Project at the time the default or breach was alleged to have occurred and such person shall remain liable for any and all damages occasioned by the default or breach even after such person ceases to be the owner of the Project. -32- Notwithstanding the above, the provisions of this Section 28 shall not in any way limit or alter the Issuer’s authority, power or activities as a governmental regulatory agency pursuant to applicable laws and regulations relating to the Project or otherwise. Section 29. Limitation on Borrower Liability. Notwithstanding any other provision or obligation to the contrary contained in this Regulatory Agreement, and except for the Borrower’s obligations under Section 9 of this Regulatory Agreement (which are not subject to the provisions and limitations of this Section 29) (i) the liability of the Borrower under this Regulatory Agreement to any person or entity, including, but not limited to, the Bondowner Representative or the Issuer and their successors and assigns, is limited to the Borrower’s interest in the Project, the revenues therefrom, including the amount held in the funds and accounts created under the Indenture and the Loan Documents (as defined in the Loan Agreement), or any rights of the Borrower under any guarantees relating to the Project, and such persons and entities shall look exclusively thereto, or to such other security as may from time to time be given for the payment of obligations arising out of this Regulatory Agreement or any other agreement securing the obligations of the Borrower under this Regulatory Agreement; and (ii) from and after the date of this Regulatory Agreement, no deficiency or other personal judgment, in any action or proceeding brought to enforce any term or provision of this Regulatory Agreement (other than any obligation to pay principal and/or interest), no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Regulatory Agreement), shall be rendered against the Borrower, the assets of the Borrower (other than the Borrower’s interest in the Project or in amounts held in the funds and accounts created under the Indenture and the Loan Documents (as defined in the Loan Agreement), or any rights of the Borrower under any guarantees relating to the Project), its partners, successors, transferees or assigns and their respective members, managers, officers, directors, employees, partners, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Regulatory Agreement. Nothing in this Section 29 or elsewhere in this Regulatory Agreement shall be construed as limiting, waiving or otherwise affecting the direct recourse liability of Borrower and its general partners under the Loan Documents and/or the liability under that certain Repayment Guaranty or that Certain Completion Guaranty, each dated as of the date of this Regulatory Agreement and executed by the Guarantor (as defined in the Loan Agreement) in favor of the Bondowner Representative. Section 30. Limited Liability. All obligations of the Issuer incurred under this Regulatory Agreement shall be limited obligations, payable solely and only from Bond proceeds and other amounts derived by the Issuer from the Loan or otherwise under the Loan Agreement. Section 31. Conflict With Other Affordability Agreements. In the event of any conflict between the provisions of this Regulatory Agreement and any agreement referenced in Section 3(e)(iii) hereof, the provisions providing for the most affordable units, with the most affordability, in the Development shall prevail, so long as at all times the requirements of Section 2, 3, 4, 4A, 6 and 7 of this Regulatory Agreement are in any event satisfied. Notwithstanding the foregoing, a breach or default under any agreement referenced in Section -33- 3(e)(iii) hereof shall not, in itself, constitute a breach or a default under this Regulatory Agreement. S-1 IN WITNESS WHEREOF, the Issuer and the Borrower have executed this Regulatory Agreement by duly authorized representatives, all as of the date first above written. COUNTY OF CONTRA COSTA, CALIFORNIA By: John Kopchik, Director, Department of Conservation and Development EL CERRITO SENIOR L.P., a California limited partnership By: El Cerrito Senior LLC, its General Partner By: Eden Housing, Inc., its Manager By: Linda Mandolini, President 03007.37:J14229 [Signature Page to Regulatory Agreement and Declaration of Restrictive Covenants – Hana Gardens Apartments] NOTARY ACKNOWLEDGMENT State of California ss. County of On , before me, Date Name and Title of Officer (e.g., “Jane Doe, Notary Public") personally appeared Name(s) of Signer(s) 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] Notary Public A notary public or other officer completing this certif icate 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. NOTARY ACKNOWLEDGMENT State of California ss. County of On , before me, Date Name and Title of Officer (e.g., “Jane Doe, Notary Public") personally appeared Name(s) of Signer(s) 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] Notary Public A notary public or other officer completing this certif icate 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. A-1 EXHIBIT A DESCRIPTION OF PROPERTY THE FOLLOWING LAND SITUATED IN THE CITY OF EL CERRITO, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: [insert final legal description] Assessor’s Parcel Numbers: 503-010-003 and 510-010-014 B-1 EXHIBIT B FORM OF CERTIFICATE OF COMPLIANCE (CDLAC RESOLUTION) Project Name: Hana Gardens Apartments (If project has changed name since the award of allocation please note the original project name as well as the new project name) Name of Bond Issuer: County of Contra Costa CDLAC Application No.: 16-399 Pursuant to Section 13 of Resolution No. 16-100 (the “Resolution”), adopted by the California Debt Limit Allocation Committee (the “Committee”) on July 20, 2016, I, _______________, an Officer of the Project Sponsor, hereby certify under penalty of perjury that, as of the date of this Certification, the above-mentioned Project is in compliance with all of the terms and conditions set forth in the Resolution. I further certify that I have read and understand the CDLAC Resolution, which specifies that once the Bonds are issued, the terms and conditions set forth in the Resolution Exhibit A shall be enforceable by the Committee through an action for specific performance, negative points, withholding future allocation or any other available remedy. Please check if applicable: The project is currently in the Construction or Rehabilitation phase. Signature of Officer Date Printed Name of Officer Title of Officer Phone Number C-1 EXHIBIT C COMPLETION CERTIFICATE The undersigned hereby certifies that the construction of the Project funded with proceeds of the Loan was substantially completed and all units in the Project were available for occupancy and use by tenants in the Project as of ____________. The undersigned hereby certifies that: (1) the aggregate amount disbursed on the Loan to date is $___________; (2) all amounts disbursed on the Loan have been applied to pay or reimburse the undersigned for the payment of Project Costs and none of the amounts disbursed on the Loan have been applied to pay or reimburse any party for the payment of costs or expenses other than Project Costs; and (3) at least 97 percent of the amounts disbursed on the Loan have been applied to pay or reimburse the Borrower for the payment of Qualified Project Costs, and less than 25 percent of all such disbursements have been used for the acquisition of land or an interest therein. Capitalized terms used in this Completion Certificate have the meanings given such terms in the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of December 1, 2016, between El Cerrito Senior, L.P., a California limited partnership, and the County of Contra Costa, California. EL CERRITO SENIOR, L.P., a California limited partnership By: El Cerrito Senior LLC, its General Partner By: Eden Housing, Inc., its Manager By: Its: D-1 EXHIBIT D RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: CONTRA COSTA COUNTY Department of Conservation and Development 30 Muir Road Martinez, California 94553 Attention: Community Development Bond Program Manager CERTIFICATE AS TO COMMENCEMENT OF QUALIFIED PROJECT PERIOD County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E The undersigned, on behalf of El Cerrito Senior, L.P., a California limited partnership, hereby certifies that (complete blank information): 10% of the dwelling units in the Project financed in part from the proceeds of the captioned bonds were first occupied on ________________, 20____. 50% of the dwelling units in the Project financed in part from the proceeds of the captioned bonds were first occupied on ________________, 20__. Capitalized terms used in this Certificate as to Commencement of Qualified Project Period have the meanings given such terms in the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of December 1, 2016, between El Cerrito Senior, L.P., a California limited partnership, and the County of Contra Costa, California. EL CERRITO SENIOR, L.P., a California limited partnership By: Its: E-1 EXHIBIT E CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE HANA GARDENS APARTMENTS Witnesseth that on this ____ day of ____________, 20__, the undersigned, having borrowed certain funds from the County of Contra Costa, California (the “Issuer”) for the purpose of financing the above-listed multifamily rental housing development (the “Project”), does hereby certify that: A. During the preceding twelve-months (i) the Project was continually in compliance with the Regulatory Agreement executed in connection with such loan from the Issuer, and (ii) ____% of the units in the Project were occupied by Low Income Tenants (minimum of 20%). B. Set forth below is certain information regarding occupancy of the Project as of the date hereof. 1. Total Units: __________ 2. Total Units Occupied: __________ 3. Total Units Held Vacant and Available for Rent to Low Income Tenants __________ 4. Total Low Income Units Occupied: __________ 5. % of Low Income Units to Total Units % __________% (equals the Total of Lines 3 and 4, divided by the lesser of Line 1 or Line 2) C. The units occupied by Low Income Tenants are of similar size and quality to other units and are dispersed throughout the Project. D. Select appropriate certification: [No unremedied default has occurred under the Regulatory Agreement, the Bonds, Loan Agreement or the Deed of Trust.] [A default has occurred under the ____________. The nature of the default and the measures being taken to remedy such default are as follows: _______________.] E. The representations set forth herein are true and correct to the best of the undersigned’s knowledge and belief. E-2 Capitalized terms used in this Certificate and not otherwise defined herein have the meanings given to such terms in the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of December 1, 2016, between the Issuer and El Cerrito Senior, L.P., a California limited partnership. Date: EL CERRITO SENIOR, L.P., a California limited partnership By: El Cerrito Senior LLC, its General Partner By: Eden Housing, Inc., its Manager By: Its: F-1 EXHIBIT F FORM OF VERIFICATION OF INCOME TENANT INCOME CERTIFICATION �  Initial Certification � Recertification �  Other _________ Effective Date: ___________________ Move-in Date: ___________________ (MM/DD/YYYY) PART I - DEVELOPMENT DATA Property Name: Hana Gardens Apartments County: Contra Costa BIN #: Address: 10860 San Pablo Avenue, El Cerrito, CA Unit Number: # Bedrooms: PART II. HOUSEHOLD COMPOSITION HH Mbr # Last Name First Name & Middle Initial Relationship to Head of Household Date of Birth (MM/DD/YYYY) F/T Student (Y or N) Social Security or Alien Reg. 1 HEAD 2 3 4 5 6 7 PART III. GROSS ANNUAL INCOME (USE ANNUAL AMOUNTS) (A) Employment or Wages (B) Soc. Security/Pensions (C) Public Assistance (D) Other Income Add totals from (A) through (D), above TOTAL INCOME (E): $ PART IV. INCOME FROM ASSETS Hshld Mbr # (F) Type of Asset (G) C/I (H) Cash Value of Asset (I) Annual Income from Asset TOTALS: $ $ Enter Column (H) Total If over $5000 $________________ X Passbook Rate 2.00% = (J) Imputed Income $ Enter the greater of the total of column I, or J: imputed income TOTAL INCOME FROM ASSETS (K) $ (L) Total Annual Household Income from all Sources [Add (E) + (K)] $ F-2 II. HOUSEHOLD CERTIFICATION & SIGNATURES The information on this form will be used to determine maximum income eligibility. I/we have provided for each person(s) set forth in Part II acceptable verification of current anticipated annual income. I/we agree to notify the landlord immediately upon any member of the household moving out of the unit or any new member moving in. I/we agree to notify the landlord immediately upon any member becoming a full time student. Under penalties of perjury, I/we certify that the information presented in this Certification is true and accurate to the best of my/our knowledge and belief. The undersigned further understands that providing false representations herein constitutes an act of fraud. False, misleading or incomplete information may result in the termination of the lease agreement. Signature (Date) Signature (Date) Signature (Date) Signature (Date) PART V. DETERMINATION OF INCOME ELIGIBILITY RECERTIFICATION ONLY: TOTAL ANNUAL HOUSEHOLD INCOME FROM ALL SOURCES: From item (L) on page 1 $ Current Income Limit x 140%: $ Household Income exceeds 140% at recertification: � Yes �  No Current Income Limit per Family Size: $ Household Income at Move-in: $ Household Size at Move-in: PART VI. RENT Tenant Paid Rent $ Rent Assistance: $ Utility Allowance $ Other non-optional charges: $ GROSS RENT FOR UNIT: (Tenant paid rent plus Utility Allowance & other nonoptional charges) $ Unit Meets Rent Restriction at: θ 60% θ 50% θ 40% θ 30% θ_____% Maximum Rent Limit for this unit: $ PART VII. STUDENT STATUS *Student Explanation: ARE ALL OCCUPANTS FULL TIME STUDENTS? � Yes �  No If yes, Enter student explanation* (also attach documentation) Enter 1-5 1. Current TANF assistance 2. Former TANF assistance (foster children only) 3. Job Training Program 4. Single parent / dependent child 5. Married/joint return F-3 PART VIII. PROGRAM TYPE Mark the program(s) listed below (a. through e.) for which this household’s unit will be counted toward the property’s occupancy requirements. Under each program marked, indicate the household’s income status as established by this certification/recertification. a. Tax Credit  See Part V above. b. HOME � Income Status  ≤ 50% AMGI  ≤ 60% AMGI  ≤ 80% AMGI  OI** c. Tax Exempt � Income Status  50% AMGI  60% AMGI  80% AMGI  OI** d. AHDP � Income Status  50% AMGI  80% AMGI  OI** e. (Name of Program) Income Status  ______  ______  OI** ** Upon recertification, household was determined over-income (OI) according to eligibility requirements of the program(s) marked above. SIGNATURE OF OWNER/REPRESENTATIVE Based on the representations herein and upon the proofs and documentation required to be submitted, the individual(s) named in Part II of this Tenant Income Certification is/are eligible under the provisions of Section 42 of the Internal Revenue Code, as amended, and the Land Use Restriction Agreement (if applicable), to live in a unit in this Project. SIGNATURE OF OWNER/REPRESENTATIVE DATE F-4 INSTRUCTIONS FOR COMPLETING TENANT INCOME CERTIFICATION This form is to be completed by the owner or an authorized representative. Part I - Development Data Check the appropriate box for Initial Certification (move-in), Recertification (annual recertification), or Other. If Other, designate the purpose of the recertification (i.e., a unit transfer, a change in household composition, or other state-required recertification). Move-in Date Enter the date the tenant has or will take occupancy of the unit. Effective Date Enter the effective date of the certification. For move-in, this should be the move-in date. For annual recertification, this effective date should be no later than one year from the effective date of the previous (re)certification. Property Name Enter the name of the development. County Enter the county (or equivalent) in which the building is located. BIN # Enter the Building Identification Number (BIN) assigned to the building (from IRS Form 8609). Address Enter the address of the building. Unit Number Enter the unit number. # Bedrooms Enter the number of bedrooms in the unit. Part II - Household Composition List all occupants of the unit. State each household member’s relationship to the head of household by using one of the follo wing coded definitions: H - Head of Household S - Spouse A - Adult co-tenant O - Other family member C - Child F - Foster child(ren)/adult(s) L - Live-in caretaker N - None of the above Enter the date of birth, student status, and social security number or alien registration number for each occupant. If there are more than 7 occupants, use an additional sheet of paper to list the remaining household members and attach it to the certification. Part III - Annual Income See HUD Handbook 4350.3 for complete instructions on verifying and calculating income, including acceptable forms of verification. From the third party verification forms obtained from each income source, enter the gross amount anticipated to be received for the twelve months from the effective date of the (re)certification. Complete a separate line for each income -earning member. List the respective household member number from Part II. Column (A) Enter the annual amount of wages, salaries, tips, commissions, bonuses, and other income from employment; distributed profits and/or net income from a business. Column (B) Enter the annual amount of Social Security, Supplemental Security Income, pensions, military retirement, etc. Column (C) Enter the annual amount of income received from public assistance (i.e., TANF, general assistance, disability, etc.). Column (D) Enter the annual amount of alimony, child support, unemployment benefits, or any other income regularly received by the household. Row (E) Add the totals from columns (A) through (D), above. Enter this amount. F-5 Part IV - Income from Assets See HUD Handbook 4350.3 for complete instructions on verifying and calculating income from assets, including acceptable forms of verification. From the third party verification forms obtained from each asset source, list the gross amount anticipated to be received during the twelve months from the effective date of the certification. List the respective household member number from Part II and comp lete a separate line for each member. Column (F) List the type of asset (i.e., checking account, savings account, etc.) Column (G) Enter C (for current, if the family currently owns or holds the asset), or I (for imputed, if the family has disposed of the asset for less than fair market value within two years of the effective date of (re)certification). Column (H) Enter the cash value of the respective asset. Column (I) Enter the anticipated annual income from the asset (i.e., savings account balance multiplied by the annual interest rate). TOTALS Add the total of Column (H) and Column (I), respectively. If the total in Column (H) is greater than $5,000, you must do an imputed calculation of asset income. Enter the Total Cash Value, multiply by 2% and enter the amount in (J), Imputed Income. Row (K) Enter the greater of the total in Column (I) or (J) Row (L) Total Annual Household Income From all Sources Add (E) and (K) and enter the total HOUSEHOLD CERTIFICATION AND SIGNATURES After all verifications of income and/or assets have been received and calculated, each household member age 18 or older must sign and date the Tenant Income Certification. For move-in, it is recommended that the Tenant Income Certification be signed no earlier than 5 days prior to the effective date of the certification. Part V – Determination Of Income Eligibility Total Annual Household Income from all Sources Enter the number from item (L). Current Income Limit per Family Size Enter the Current Move-in Income Limit for the household size. Household income at move-in Household size at move-in For recertifications, only. Enter the household income from the move-in certification. On the adjacent line, enter the number of household members from the move-in certification. Household Meets Income Restriction Check the appropriate box for the income restriction that the household meets according to what is required by the set-aside(s) for the project. Current Income Limit x 140% For recertifications only. Multiply the Current Maximum Move-in Income Limit by 140% and enter the total. Below, indicate whether the household income exceeds that total. If the Gross Annual Income at recertification is greater than 140% of the current income limit, then the available unit rule must be followed. F-6 Part VI - Rent Tenant Paid Rent Enter the amount the tenant pays toward rent (not including rent assistance payments such as Section 8). Rent Assistance Enter the amount of rent assistance, if any. Utility Allowance Enter the utility allowance. If the owner pays all utilities, enter zero. Other non-optional charges Enter the amount of non-optional charges, such as mandatory garage rent, storage lockers, charges for services provided by the development, etc. Gross Rent for Unit Enter the total of Tenant Paid Rent plus Utility Allowance and other non-optional charges. Maximum Rent Limit for this unit Enter the maximum allowable gross rent for the unit. Unit Meets Rent Restriction at Check the appropriate rent restriction that the unit meets according to what is required by the set-aside(s) for the project. Part VII - Student Status If all household members are full time* students, check “yes”. If at least one household member is not a full time student, check “no”. If “yes” is checked, the appropriate exemption must be listed in the box to the right. If none of the exemptions apply, the household is ineligible to rent the unit. *Full time is determined by the school the student attends. Part VIII – Program Type Mark the program(s) for which this household’s unit will be counted toward the property’s occupancy requirements. Under each program marked, indicate the household’s income status as established by this certification/recertification. If the property does not participate in the HOME, Tax-Exempt Bond, Affordable Housing Disposition, or other housing program, leave those sections blank. Tax Credit See Part V above. HOME If the property participates in the HOME program and the unit this household will occupy will count towards the HOME program set-asides, mark the appropriate box indicting the household’s designation. Tax Exempt If the property participates in the Tax Exempt Bond program, mark the appropriate box indicating the household’s designation. AHDP If the property participates in the Affordable Housing Disposition Program (AHDP), and this household’s unit will count towards the set-aside requirements, mark the appropriate box indicting the household’s designation. Other If the property participates in any other affordable housing program, complete the information as appropriate. SIGNATURE OF OWNER/REPRESENTATIVE It is the responsibility of the owner or the owner’s representative to sign and date this document immediately following executi on by the resident(s). The responsibility of documenting and determining eligibility (including completing and signing the Tenant Income Certification form) and ensuring such documentation is kept in the tenant file is extremely important and should be conducted by someone well trained in tax credit compliance. These instructions should not be considered a complete guide on tax credit compliance. The responsibility for compliance with federal program regulations lies with the owner of the building(s) for which the credit is allowable. F-7 TENANT INCOME CERTIFICATION QUESTIONNAIRE Name:  Initial Certification #  Re-certification  Other # Telephone Number: ( ) BIN Unit F-8 Income Information YES NO Income Information Monthly Gross Income   I/we am self employed. (List nature of self employment) (use net income from business) $   I/we have a job and receive wages, salary, overtime pay, commissions, fees, tips, bonuses, and/or other compensation: List the businesses and/or companies that pay you: Name of Employer 1) 2) 3) $ $ $   I/we receive cash contributions of gifts including rent or utility payments, on an ongoing basis from persons not living with me. $   I/we receive unemployment benefits. $   I/we receive Veteran’s Administration, GI Bill, or National Guard/Military benefits/income. $   I/we receive periodic social security payments. $   The household receives unearned income from family members age 17 or under (example: Social Security, Trust Fund disbursements, etc.). $   I/we receive Supplemental Security Income (SSI). $   I/we receive disability or death benefits other than Social Security. $   I/we receive Public Assistance Income (examples: TANF, AFDC) $   I/we am entitled to receive child support payments. $   I/we am currently receiving child support payments. If yes, from how many persons do you receive support? $   I/we am/are currently making efforts to collect child support owed to me. List efforts being made to collect child support: $   �I/we receive alimony/spousal support payments $_______________   I/we receive periodic payments from trusts, annuities, inheritance, retirement funds or pensions, insurance policies, or lottery winnings. If yes, list sources: 1) 2) $ $   I/we receive income from real or personal property. (use net earned income) $ F-9 Asset information YES NO Interest Rate Cash Value   I/we have a checking account(s). If yes, list bank(s) 1) 2) % % $ $   I/we have a savings account(s) If yes, list bank(s) 1) 2) % % $ $   I/we have a revocable trust(s) If yes, list bank(s) 1) % $   I/we own real estate. If yes, provide description: $   I/we own stocks, bonds, or Treasury Bills If yes, list sources/bank names 1) 2) 3) % % % $ $ $   I/we have Certificates of Deposit (CD) or Money Market Account(s). If yes, list sources/bank names 1) 2) 3) % % % $ $ $   I/we have an IRA/Lump Sum Pension/Keogh Account/401K. If yes, list bank(s) 1) 2) % % $ $   I/we have a whole life insurance policy. If yes, how many policies __________ $   I/we have cash on hand. $   I/we have disposed of assets (i.e. gave away money/assets) for less than the fair market value in the past 2 years. If yes, list items and date disposed: 1) 2) $ $   I/we have income from assets or sources other than those listed above. If yes, list type below: 1) 2) % % $ $ F-10 Student Status YES NO   Does the household consist of persons who are all full-time students ( Examples: College/University, trade school, etc.)?   Does your household anticipate becoming a full-time student household in the next 12 months?           If you answered yes to either of the previous two questions are you: • Receiving assistance under Title IV of the Social Security Act (AFDC/TANF) • Enrolled in a job training program receiving assistance through the Job Training Participation Act (JTPA) or other similar program • Married and filing a joint tax return • Single parent with a dependent child or children and neither you nor your child(ren) are dependent of another individual Under penalties of perjury, I certify that the information presented on this form is true and accurate to the best of my/our knowledge. The undersigned further understands that providing false representations herein constitutes an act of fraud. False, misleading or incomplete information will result in the denial of application or termination of the lease agreement. PRINTED NAME OF APPLICANT/TENANT SIGNATURE OF APPLICANT/TENANT DATE WITNESSED BY (SIGNATURE OF OWNER/REPRESENTATIVE) Loan No. 1016291 - 1 - DWT 30207654v3 0088288-000026 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Wells Fargo Bank, National Association Community Lending and Investment MAC# A0119-183 333 Market Street, 18th Floor San Francisco, California 94105 Attention: Loan Administration Officer Loan No.: 1016291 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSIGNMENT OF DEED OF TRUST AND LOAN DOCUMENTS This Assignment of Deed of Trust and Loan Documents (“Assignment’) is dated as of ///[December 1, 2016]///, and is executed by the COUNTY OF CONTRA COSTA, CALIFORNIA, a political subdivision and body corporate and politic, duly organized and validly existing under the laws of the State of California (the “Assignor”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (the “Assignee”), in accordance with the Indenture of Trust dated as of ///[December 1, 2016]/// (the “Indenture”) between the Assignor, as Issuer, and the Assignee, as Bondowner Representative. RECITALS A. The Borrower has executed and delivered the following documents, each of wh ich is dated as of the date hereof: 1. that certain Loan Agreement among El Cerrito Senior, L.P., a California limited partnership (“Borrower”), Assignor and Assignee, with respect to a loan (the “Loan”) in the amount of _________________________________ and No/100th Dollars ($_________________.00) (the “Loan Agreement”); 2. that certain Promissory Note, made by Borrower to the order of Assignor in the original face principal amount of ___________________________________ and No/100 th Dollars ($_______________.00) (the “Note”); and 3. that certain Construction and Permanent Deed of Trust With Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing, executed by Borrower, as trustor, in favor of American Securities Company, as trustee, for the benefit of Assignor and Assignee, collectively, as beneficiary, recorded in the Official Records of Contra Costa County, California substantially concurrently herewith (the “Deed of Trust”). The documents described in paragraphs A.1 – A.3, above, together with all financing and continuation statements to perfect the liens and security interests granted thereby, are collectively referred to herein as the “Deed of Trust Documents”. B. Pursuant to the Indenture, Issuer is issuing those certain County of Contra Costa Multifamily Housing Revenue Bonds (Hana Gardens Apartments), Series 2016E in the aggregate principal amount of $________________.00 (the "Bonds"). Pursuant to the Indenture, Assignor desires to assign and transfer to the Assignee all its right, title and interest to and its obligations under (but not any of its obligations which are not assignable as a matter of law) the Deed of Trust Documents, excluding all the Reserved Rights (as defined in the Indenture), and the Assignee desires to acquire the Assignor’s rights, title and interest as aforesaid under the Deed of Trust Documents in accordance with Loan No. 1016291 - 2 - DWT 30207654v3 0088288-000026 the terms hereof. The Assignee is joining in the execution of this Assignment in order to evidence its acceptance hereof and to agree to provide notice, opportunity to cure and approval rights as more fully set forth herein. C. Pursuant to that certain Bond Purchase Agreement dated as of even date herewith (the “Bond Purchase Agreement”) by and among the Borrower, Assignee and California Community Reinvestment Corporation, a California nonprofit public benefit corporation (“CCRC”), CCRC has agreed, subject to the terms and conditions set forth therein, including inter alia completion of construction and lease-up of the units on the Property, to purchase $______________ in principal amount of the Bonds from Assignee. In connection therewith and upon and after the Conversion Date (as that term is defined in the Loan Agreement), Assignee shall assign to CCRC all of its rights under the Purchased Documents (as defined in the Bond Purchase Agreement), including but not limited to, the Indenture, the Loan Agreement, the Deed of Trust and the Note. D. Borrower is joining in the execution of this Assignment in order to evidence its consent hereto and in order to agree that the Deed of Trust Documents shall be effective to secure the obligations of the Borrower to the Assignee as more fully set forth therein and herein. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: Section 1. Definitions. All capitalized words and phrases not defined herein shall have the meaning ascribed to such words and phrases in the Loan Agreement. Section 2. Assignment. The hereby Assignor assigns, sets over and transfers to the Assignee all the right, title and interest of the Assignor in, to and under (bu t not any of its obligations which are not assignable as a matter of law) the Deed of Trust Documents, excluding the Reserved Rights (as defined in the Indenture). This Assignment is made and shall be without recourse, warranty or representation of the Assignor. This Assignment is made pursuant to the Indenture, in connection with the issuance of the Bonds. Section 3. Acceptance. The Assignee hereby accepts the assignment made pursuant to Section 2. Section 4. Miscellaneous. In case any one or more of the provisions contained in this Assignment are invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein will not be affected or impaired thereby. This Assignment may be executed in any number of counterparts, each executed counterpart constituting an original, but all counterparts together constituting only one instrument. It is the intention of the parties hereto that this Assignment and the rights and obligations of the parties hereunder shall be governed, construed and enforced in accordance with the laws of the State of California, without reference to the conflicts of laws of the State of California. Section 5. Successor and Assigns. This Assignment shall be binding upon and inure to the benefit of the heirs, legal representatives, assigns, and successors -in-interest of Assignor and Assignee; provided, however, this shall not be construed and is not intended to waive any restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation or enc umbrance by Borrower contained in any of the Deed of Trust Documents. Assignor acknowledges and agrees to the assignment at the time of Conversion by Assignee to CCRC of all of the right, title and interest of Assignee under this Assignment. [Remainder of Page Intentionally Left Blank] [Hana Gardens - Signature Page to Assignment of Deed of Trust and Loan Documents] DWT 30207654v3 0088288-000026 IN WITNESS WHEREOF, the undersigned have executed this Assignment of Deed of Trust Documents as of the date first above written. ASSIGNOR: COUNTY OF CONTRA COSTA, CALIFORNIA By: __________________________________ John Kopchik Director, Department of Conservation and Development [Hana Gardens - Signature Page to Assignment of Deed of Trust and Loan Documents] DWT 30207654v3 0088288-000026 ASSIGNEE: WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association By: ___________________________________ Jeff Bennett Senior Vice President [Hana Gardens - Signature Page to Assignment of Deed of Trust and Loan Documents] DWT 30207654v3 0088288-000026 The undersigned, being the Borrower referred to in the foregoing Assignment of Deed of Trust and Loan Documents, hereby acknowledges receipt and acceptance thereof and consents and agrees to the Assignment made therein and to the terms and provisions thereof to such Assignment. BORROWER: EL CERRITO SENIOR, L.P., a California limited partnership By: El Cerrito Senior LLC, a California limited liability company, its General Partner By: Eden Housing, Inc., a California nonprofit public benefit corporation, its Manager By: _________________________________ [Name] [Title] DWT 30207654v3 0088288-000026 ACKNOWLEDGEMENT STATE OF CALIFORNIA ) ) COUNTY OF ____________________________) On ______________________, 2016 before me, ___________________________________________, a Notary Public, personally appeared ______________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Californi a that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _______________________________ (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. DWT 30207654v3 0088288-000026 ACKNOWLEDGEMENT STATE OF CALIFORNIA ) ) COUNTY OF ____________________________) On ______________________, 2016 before me, ___________________________________________, a Notary Public, personally appeared ______________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose nam e(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) 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. DWT 30207654v3 0088288-000026 ACKNOWLEDGEMENT STATE OF CALIFORNIA ) ) COUNTY OF ____________________________) On ______________________, 2016 before me, ___________________________________________, a Notary Public, personally appeared ______________________________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foreg oing paragraph is true and correct. WITNESS my hand and official seal. Signature _______________________________ (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. A-1 DWT 30207654v3 0088288-000026 EXHIBIT A - PROPERTY DESCRIPTION RECOMMENDATION(S): Approve and authorize the Health Services Director, or his designee, to execute on behalf of the County, an Agreement #28-363 with Point Comfort Underwriters, Inc., a subcontractor of the United States Department of Health and Human Services Office of Refugee Resettlement, to administer delivery and payment of healthcare services provided to unaccompanied refugee children at Contra Costa Regional Medical Center (CCRMC), for the period November 1, 2016 through October 31, 2019. FISCAL IMPACT: None. This non-financial agreement will allow the County to bill for services provided to unaccompanied refugee children at CCRMC. BACKGROUND: The United States Department of Health and Human Services funds local governmental agencies who provide medical services to unaccompanied refugee children with appropriate documentation of eligibility. CCRMC provides healthcare to unaccompanied refugee children who reside at the South West Key Program in Pleasant Hill. This agreement will establish procedures for these children to receive medical treatment at CCRMC. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Pat Godley, 925-957-5405 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Tasha Scott, Marcy Wilhelm C.111 To:Board of Supervisors From:William Walker, M.D., Health Services Director Date:December 6, 2016 Contra Costa County Subject:Approve Agreement #28-363 with Point Comfort Underwriters, Inc. BACKGROUND: (CONT'D) Under Agreement #28-363 the County and Contractor will facilitate a system for unaccompanied children to be authorized for medical services and establish billing requirements in accordance with federal policies and procedures. CONSEQUENCE OF NEGATIVE ACTION: If this agreement is not approved, unaccompanied refugee children will not have authorization for preventative medical services. CHILDREN'S IMPACT STATEMENT: Not applicable. RECOMMENDATION(S): ACCEPT quarterly report of the Post Retirement Health Benefits Trust Agreement Advisory Body. FISCAL IMPACT: No specific fiscal impact. This is a quarterly report of the County's assets in the Public Agency Retirement Services (PARS) Public Agencies Post-Retirement Health Care Plan Trust. BACKGROUND: On December 14, 2010, the Board of Supervisors directed the formation of a Post Retirement Health Benefits Trust Agreement Advisory Body (consisting of the County Administrator, County Finance Director, Treasurer-Tax Collector, Auditor-Controller, and Health Services Finance Director). The Advisory Body meets quarterly. At its meeting of August 4, 2011, the body discussed and reviewed final report formats with HighMark Capital Management and made recommendations regarding a final standardized quarterly report. The attached report is in the standardized format. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lisa Driscoll, County Finance Director (925) 335-1023 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Robert Campbell, County Auditor-Controller, Russell Watts, County Treasurer-Tax Collector C.112 To:Board of Supervisors From:David Twa, County Administrator Date:December 6, 2016 Contra Costa County Subject:Quarterly Report of the Post Retirement Health Benefits Trust Agreement Advisory Body BACKGROUND: (CONT'D) > The following is the investment summary presented at the November 17, 2016 quarterly meeting for the period ending September 30, 2016: Investment Summary Third Quarter 2016 Beginning Value $195,885,034.30 Net Contributions/Withdrawals -39,944.37 Fees Deducted -45,187.25 Income Received 1,087,359.87 Market Appreciation 4,781,743.33 Net Change in Accrued Income -54,683.92 Ending Market Value $201,614,321.96 Additional Materials - A Post Retirement Health Benefits Trust Agreement Advisory Body web-page can be found at the following address: http://ca-contracostacounty.civicplus.com/index.aspx?NID=2915. The page describes the function of the body, posts quarterly meeting materials, and all pertinent trust and plan documents. ATTACHMENTS Third Quarter 2016 PARS: County of Contra Costa Third Quarter 2016 Presented by Andrew Brown, CFA This presentation has been prepared for the sole use of the intended recipient. While the information contained herein has been obtained from sources believed to be accurate and reliable, any other reproduction or use of this information may necessitate further disclosures in order to ensure that the presentation is accurate, balanced, and conforms to all applicable regulatory requirements. DISCUSSION HIGHLIGHTS U.S. Economic and Market Overview Over the past year, we have ended each quarter looking back at the unusual events that transpired over the prior three months, we are continually encouraged/surprised by the market’s reaction to such events and the resilience of this long lived bull market. The third quarter of 2016 was no exception. The quarter stated off with heightened uncertainty, revolving around the outcome of the “Brexit” vote in favor of the UK exiting from the European Union (EU). Perhaps just as surprising as the vote to leave the EU in late June was how quickly financial markets shrugged off a significant geopolitical development. After a brief sell-off in risky assets, quick responses by global central banks, once again served to soothe the fears of investors, sending capital back into risk assets and fueling a continued rally in the equity markets. Even European equity markets, that presumably would be most adversely affected by “Brexit”, enjoyed strong performance during the third quarter of 2016. Once again, the resilience of risk assets in the face of turmoil highlights the power of monetary policy to influence investor’s sentiment, while raising the question of “how much longer will it continue to work?” Signs of diminishing returns from aggressive monetary policy are showing up in weakening global economic activity indicators. In order to avoid a liquidity trap, a growing chorus of voices are calling for a coordinated fiscal policy response to take the baton from central banks. A lack of political will and already high sovereign debt levels, however, will challenge such a movement. In the U.S. we watched our own shocking political campaigns transpire, with headlines that would rival a tabloid cover story. The current political battle here in the U.S. outlines the success of the populist movement and underscores the rising dissatisfaction with the status quo of both parties among the electorate. Tepid economic growth and rising income inequality appear to be the main culprits. The current U.S. sentiment towards the establishment is eerily similar to that of the UK surrounding the “Brexit” vote. Could political and market analysts be in for another surprise at the end of the U.S. election? With election day in sight, investors may now turn their focus to a narrow set of potential outcomes. While there is sure to be heightened volatility in the near-term, for long-term investors, the bigger question is what either candidate can actually accomplish with an increasingly partisan Congress. As such, the margin of victory, along with any changes to the party makeup of Congress, will be just as important as which candidate is ultimately elected. The investment implications of the political landscape are only increasing. When limits of monetary policy effectiveness are tested, more is expected from the fiscal side of the economic equation. 3 Market overview/Performance Discussion Total Plan The County of Contra Costa OPEB Plan returned 2.94% net of investment fees, in the third quarter, which matched the County’s Plan benchmark return target of 2.90%. The Plans’ overweight to international equities finally bore some fruit, with outperformance supportive of returns. Fixed income investments outperformed the benchmark, but bond markets offered up paltry returns (Bloomberg Barclays Aggregate Index +0.46%). The strongest area of performance contribution came from large cap equities, which performed favorably vs. the Russell 1000, while mid cap equities neither added nor subtracted from performance with returns in-line with the benchmark. REIT equities offered negative returns in the quarter, as investors began to discount a future interest rate hike. While small cap equities offered the strongest absolute return, our managers underperformed the benchmark, which detracted from relative returns. Finally, alternatives lagged the benchmark and detracted from performance due to our manager in the managed futures category. Domestic Equity The quarter ended with strong U.S. Census Bureau data showing that median household income posted its first significant increase (+5.2%) in over eight years. Improving median income, coupled with the low unemployment rate, has been positive for the domestic equity market. However, the problem that remains is the U.S. labor market strength has not yet translated into strength for the wider economy as measured by GDP growth. In fact, increases in household income and subsequent boosts in consumer spending have been among the only positive contributions to tepid U.S. GDP growth. How then does one reconcile these seemingly conflicting data points – a strong labor market yet weak GDP numbers? While the labor market is improving, productivity has not. Productivity growth, one of the pillars of the economy, remains below historical averages and is likely to remain low, creating challenges for both economic growth and equity markets. Productivity growth since 2007 has been half that of the pre-recession period. This is not surprising when you see that business investment growth, historically the major determinant of overall productivity growth, has largely been absent as the current business cycle matures. Many companies have been opting to spend free cash flow to buy back shares and pay dividends, a trend that helps support equity markets in the short-term but does not create productive assets to support long-term earnings growth. Additionally, earnings have been declining now for over a year. A scenario where corporate earnings are falling, does not exude confidence that this trend can continue. While the U.S. economy is showing conflicting signs that give both bulls and bears ammunition to argue their points, the bulls appear to be in the lead. In the third quarter of 2016 all the major U.S. equity indices were up nicely with the Russell 1000 Index returning +4.0%, the Russell Mid Cap Index returning +4.5%, and the Russell 2000 Index leading the group with a 9.1% return. During the quarter, we saw a clear reversal of the risk-off trend witnessed earlier in 2016, as cyclical sectors outperformed at the expense of defensive sectors. The standout performer for the quarter was the Technology sector with a 12.9% return. 4 • The Plan’s large cap segment returned 5.22% in the quarter, which outperformed the Russell 1000 Index return of 4.03%. • The iShares Russell 1000 ETF returned 4.0% in the third quarter. •The Columbia Contrarian Core Fund returned 4.27% in the quarter, which outperformed the benchmark. The Fund ranked in the 36th percentile of the Morningstar Large Cap Blend Universe. •The Harbor Capital Appreciation Fund returned 8.16% in the quarter, which outperformed the Russell 1000 Growth Index’s return of 5.59%. The Fund ranked in the 11th percentile of the Morningstar Large Cap Growth Universe. •The T. Rowe Price Growth Stock Fund returned 7.88% in the quarter, which outperformed the Russell 1000 Growth Index. The Fund ranked in the 14th percentile of the Morningstar Large Cap Growth Universe. •The Dodge and Cox Stock Fund returned 8.79% in the quarter, which outperformed the Russell 1000 Value Index’s return of 3.48%. The Fund ranked in the 2nd percentile of the Morningstar Large Cap Value Universe. •The Loomis Sayles Value Fund posted a 3.07% return in the quarter, which underperformed the Russell 1000 Value Index. The Fund ranked in the 62nd percentile of the Morningstar Large Cap Value Universe. •The mid cap equity segment returned 4.41% in the quarter, which was in-line with the Russell Mid Cap Equity return of 4.52%. •The iShares Russell Mid Cap ETF returned 4.45% in the third quarter. •The small cap equity segment returned 8.13% in the quarter, which trailed the Russell 2000 Index return of 9.05%. •The iShares Russell 2000 ETF returned 9.04% in the third quarter. •The T. Rowe Price New Horizons Fund returned 7.77% in the quarter, and underperformed the Russell 2000 Growth Index return of 9.22%. The Fund ranked in the 52nd percentile of Morningstar’s Small Cap Growth Universe. •The Columbia Small Cap Value Fund II returned 7.30% in the quarter, and underperformed the Russell 2000 Value Index’s return of 8.87%. The Fund ranked in the 46th percentile of Morningstar’s Small Cap Value Universe. We sold out of this Fund at the end of September 5 Real Estate After three quarters in a row where REITs were the top returning segment in the Plan, REITs declined in the third quarter, with the Wilshire REIT Index returning -1.21%. REITs started off strong in July, as they were viewed as an asset class with only limited impact from “Brexit”. However, as the quarter progressed, and as the possibility that the Federal Reserve might raise interest rates, REITs came under pressure. Industrial (+6.7%), Single Family (+3.3%), and Office (+3.3%) were three bright spots in the REIT universe. REIT returns were held back by sizable sell- offs in Data Centers (-9.0%), Specialty (-9.9%), Self-storage (-12.2%), Shopping Centers (-3.3%), and Regional Malls (-3.1%). The announcement that Macy’s was looking to close 100 stores, led to some concerns that mall occupancy might decline. An additional negative for shopping centers, were the bankruptcy announcements from several restaurant chains in the quarter: Cosi Inc, Garden Fresh, Last Call Guarantor, Zio’s, Logan’s Roadhouse, and Rita Restaurants. The concern here relates to both a loss of tenants for REIT enterprises, but also a decline in casual dining may portend weakness in the economy. The Nuveen Real Estate Securities Fund returned -1.41% in the quarter, which underperformed the Wilshire REIT Index return of -1.21%. The Fund placed in the 49th percentile of the Morningstar Real Estate Manager’s Universe. Global/International Equity For a while now, there has been a divergence in performance between the U.S. equity market and international markets, in both developed and emerging markets. While the emerging market countries started showing strength in the first quarter of 2016, their developed market counterparts continued to lag behind the U.S. The third quarter of 2016 saw a turn in the long trend of developed international underperformance. The MSCI EAFE Index returned 6.4% in the third quarter vs. 4.03% for the Russell 1000 Index. Emerging markets performed even better with an impressive 9% return, in USD terms. International equities have lagged behind the U.S. for most of the recovery since the 2008 financial crisis. While the U.S. led the way into the recession, they also recovered more quickly, by implementing aggressive monetary policies aimed to stimulate a battered domestic economy. Foreign counterparts where much slower to act, and had many additional structural problems to deal with, many of which are still being addressed today. Currently, we have a U.S. equity market near all-time highs, stretched valuations, and a central bank ready to increase interest rates (tighter monetary policy). In contrast, international markets have relatively attractive valuations and earnings growth potential supported by the early stages of economic recovery in many countries. While there is the potential for more risk in international markets, there is compensatory potential reward relative to domestic stocks. 6 In the third quarter, developed international equities were led by Japan with an impressive 8.6% return, and the rest of the Pac ific region (Australia, Hong Kong, and Singapore) with a collective 8.2% return. Europe Ex-UK, added to the outperformance, returning 6%. Even the U.K., with the added uncertainty of the “Brexit” vote, outperformed the U.S. with a 4% return measured in USD. Emerging markets continued their display of strong 2016 performance by returning 9% collectively for the third quarter. Emerging Asia led the way as fears of a hard economic landing in China declined again (EM Asia +10.5, China +14%). Other bright spots were the commodity reliant economies, as energy prices stabilized and a more favorable outlook for energy supply and demand equilibrium gained traction. Russia (+30.6% YTD) and Brazil (62.9% YTD) continued their relative outperformance with returns of 8.4% and 11.3%, respectively for the quarter. While emerging market equities have been a welcome boost to performance in 2016, event risk—including a hard landing in China and a rapid, destabilizing Yuan devaluation—seem high relative to potential reward. A seemingly successful round of Chinese fiscal and monetary stimulus combined with a pause in U.S. monetary normalization has reduced this risk over the near-term. The U.S. now seems intent on continuing a policy of increasing interest rates, and thus a major question mark remains. Will EM equities be negatively impacted by tighter U.S. monetary policy? While it feels like a long time ago, the heightened volatility that surrounded the last U.S. interest rate increase is a reminder of how quickly sentiment can turn. •The Plan’s international/global equity segment returned 6.32% in the quarter. This return slightly lagged the MSCI EAFE Index 6.43%, and outperformed the MSCI ACWI Index return of 5.30%. •The iShares MSCI EAFE Index ETF returned 6.36% in the quarter. •The Nationwide Bailard International Equity Fund returned 4.87% in the quarter, which underperformed the MSCI EAFE Index. The Fund ranked in the 83rd percentile of the Morningstar Foreign Large Blend Universe. •The Dodge & Cox International Stock Fund returned 10.15% in the quarter and outperformed the MSCI EAFE Index. The Fund ranked in the 4th percentile of the Foreign Large Blend Universe as measured by Morningstar. •The MFS International Fund returned 6.48% in the quarter and outperformed the MSCI EAFE Index. The Fund ranked in the 38th percentile for foreign large cap growth managers as measured by Morningstar. •The iShares MSCI ACWI Index ETF returned 5.19% in the quarter •The American Funds New Perspective Fund recorded a 5.74% return in the third quarter, which outperformed the MSCI ACWI Index and ranked in the 43rd percentile within the Morningstar World Stock Universe •The MFS Global Equity R5 Fund returned 5.10%, which underperformed the benchmark and ranked in the 58th percentile of the Morningstar World Stock Universe. •The Schroder Emerging Market Equity Fund returned 10.28% during the quarter and outperformed the MSCI Emerging Market benchmark return of 9.03%. The Fund ranked in the 9th percentile of the Morningstar Emerging Market Universe. 7 Fixed Income After a volatile first half of the year, financial markets were relatively calm during the third quarter as the Bloomberg Barclays U.S. Aggregate Bond index returned 0.46%, while Treasury bonds sold off slightly and risk assets performed well. A modest 15 basis point rise in five-year U.S. Treasury yields led to a –0.3% quarterly loss for the Treasury sector, while investment-grade corporate bonds returned 1.4%, and BBB rated corporate issuers gained 2.1%. Further down the quality spectrum, high yield bonds had another outstanding quarter with a return of 5.5%, and an impressive year-to-date return of 15.1%. Commodity prices, the source of much of the volatility early in the year, were modestly lower this quarter as the CRB declined –3.3%, while WTI oil and gold were fractionally lower. Among corporate bonds, the best performing industries this quarter were Energy, Basic Industry, Communications, and Airlines. Index laggards included Diversified Manufacturing, Machinery, Consumer Products, and Utilities. Credit spreads continued to narrow this quarter, despite slowing revenue and declining corporate earnings. Revenue growth for U.S. companies has slowed to 1½% over the past year, while the third quarter could well be the sixth consecutive quarter of year-over-year declines in earnings per share. Despite this slowdown, investment-grade corporate bond spreads narrowed another 19 basis points this quarter, while high yield spreads narrowed by an impressive 124 basis points. Corporate spreads typically widen as revenue growth and earnings fall, but the continued tightening is likely due to central bank accommodation. The Federal Reserve, the ECB, the Bank of Japan, and the Bank of England together hold nearly $13 trillion of purchased assets on their balance sheets. In just the past twelve months they have collectively added another $2 trillion, representing the fastest rate of balance sheet expansion since 2009. The combination of these asset purchases and low inflation resulted in a global bond rally that set a new record low of 1.3% for the U.S. ten year Treasury yield early in the quarter. For perspective, 1.3% is a few basis points below the previous low reached in 2012 during the height of the U.S. budget crisis and the political stalemate which ultimately led to the U.S. losing its AAA credit rating. It was also below the level reached in February this year when collapsing commodity prices sent financial markets into panic mode as crude oil plunged below $30, causing double digit declines in risk assets in the U.S., Europe, China, and Japan while Treasury bonds rallied. Just weeks after reaching a new low on July 8, Treasury yields began to rise as the BOJ decided against expanding Japan’s extraordinary monetary policies, and in September the ECB chose not to extend their bond purchase plan, which is currently set to expire in March 2017. Additionally, both the Bank of Japan and the European Central Bank have called for official reviews of the effects of quantit ative easing, disappointing the markets and causing a further retreat in bond prices. At the same time, the Fed is desperate to move away from historically low interest rates and is trying to convince the market that an interest rate increase is likely at the December meeting. The markets are sensing some hesitation by central banks to expand their already extraordinary support, which may mean that we have finally reached t he outer limits of unconventional monetary policy. If so, the markets are likely to experience greater volatility in the future, and risk premiums will rise. 8 •The Plan’s fixed income segment returned 0.69% in the quarter, which outperformed the Bloomberg Barclays Aggregate return of 0.46%. •The separately managed fixed income portfolio returned 0.50% which was in-line with the benchmark. The portfolio would have ranked approximately in the 78th percentile of the Morningstar Intermediate Term Bond Universe. •The PIMCO Total Return Bond Fund posted a 1.24% in the quarter, which placed it in the 27th percentile of Morningstar’s Intermediate- Term Bond Universe. The Fund outperformed the Index. •The Prudential Total Return Bond Fund returned 1.41% in the quarter. This ranked in the 19th percentile of Morningstar’s Intermediate- Term Bond Universe and outperformed the benchmark. Alternative Investments The Alternatives portion of the portfolio returned 0.16% in the third quarter. Performance from two of the three alternative mangers was strong: Eaton Vance Global Macro Fund (+2.14%), and the AQR Equity Market Neutral Fund (+1.39%). The AQR Managed Futures Fund (-2.6%) dragged down returns considerably in the quarter. Trend following strategies experienced losses in the quarter as numerous markets, especially across commodities, fixed income, and equities experienced reversals. Coordinated action on output from OPEC and Russia in the energy sector, led to a reversal in the energy markets. Fixed income markets experienced a reversal when Central Banks began to hold back on additional stimulus measures. The AQR Equity Market Neutral Fund was aided by exposure to U.S. and Canadian equity holdings. Top contributors came from the energy and financial sectors. The Eaton Vance Global Macro Fund was aided by investments in Eastern Europe and Asia. Top performing contributors were long investments in the Icelandic Krona, Sri Lankan Rupee, and Macedonia Credit. Shorts in Saudi Arabian rate investments, also aided returns •The alternative investment segment returned 0.16% in the third quarter, which underperformed the Wilshire Liquid Alternatives Index return of 1.45%. •The AQR Equity Market Neutral Fund added 1.39%, and ranked in the 28th percentile of the Morningstar Market Neutral Universe. •The Eaton Vance Global Macro Absolute Return Fund posted a 2.14% return, which placed in the 47th percentile of the Morningstar Non-Traditional Bond Universe. •The AQR Managed Futures Fund’s return of -2.60% ranked in the 67th percentile of Morningstar’s Managed Futures Fund Universe 9 Asset Allocation/Portfolio Transitions During the quarter, we replaced our small cap value manager, the Columbia Small Cap Value Fund with the Undiscovered Managers Behavioral Value Fund. While this fund has an unusual name, it has a strong track record of outperforming the benchmark. The managers seek to identify small cap stocks that are subject to specific human biases, which lead to underperformance (and undervaluation) and look to insider buying signals as an indicator of a company’s future potential. 10 Manager Watch List Name of Fund Date on watch list Date exiting watch list Recommendation Rationale Pimco Total Return Bond Fund 4Q 2014 Review Peer ranking, while improving, is still below median for 3-year period. Eaton Vance Global Macro Absolute Return Fund 3Q 2015 3Q 2016 Remove from watch list Investment returns have been in-line with expectations. Dodge and Cox International Stock Fund 2Q 2016 Review The manager’s performance was in the fourth percentile in the third quarter. On a three year basis, the managers are still below the median of managers in the Morningstar Foreign Large Blend Universe. Loomis Sayles Value Fund 3Q 2016 Review Peer ranking on a 3-year basis, has lagged the median within the Morningstar Large Cap Value Universe for three consecutive quarters. 11 12 6/30/2016 6/30/2016 9/30/2016 9/30/2016 Target Asset Allocation Market Value % of Total Market Value % of Total Allocation Large Cap Equities Columbia Contrarian Core Z 6,200,751 3.2%6,639,285 3.3%-- iShares Russell 1000 ETF 10,897,070 5.6%11,615,115 5.8%-- Dodge & Cox Stock Fund 4,240,056 2.2%4,592,954 2.3%-- Loomis Sayles Value Fund 4,281,600 2.2%4,543,448 2.3%-- Harbor Capital Appreciation Instl 2,365,457 1.2%2,558,547 1.3%-- T. Rowe Price Growth Stock Fund 2,361,967 1.2%2,548,118 1.3%-- Total Large Cap Equities 30,346,900$ 15.5%32,497,466$ 16.1%17.0% Range Range 13-32% Mid Cap Equities iShares Russell Mid-Cap ETF 6,612,783 3.4%7,085,236 3.5%-- Total Mid Cap Equities 6,612,783$ 3.4%7,085,236$ 3.5%6.0% Range Range 2-10% Small Cap Equities iShares Russell 2000 ETF 7,054,598 3.6%7,574,698 3.8%-- Columbia Small Cap Value Fund II 6,198,509 3.2%------ Undiscovered Mgrs Behavioral Value Inst ----6,635,753 3.3% T. Rowe Price New Horizons Fund 2,895,666 1.5%3,120,539 1.6%-- Total Small Cap Equities 16,148,773$ 8.3%17,330,990$ 8.6%8.0% Range Range 4-12% International Equities Nationwide Bailard Intl Equities I 5,060,956 2.6%5,648,967 2.8%-- iShares MSCI EAFE Index Fund 6,820,646 3.5%8,071,718 4.0%-- Dodge & Cox International Stock Fund 2,709,793 1.4%3,024,798 1.5%-- MFS International Growth Fund 2,755,682 1.4%3,127,849 1.6%-- Schroder Emerging Market Equity 2,999,151 1.5%3,307,426 1.6%-- Total International Equities 20,346,227$ 10.4%23,180,758$ 11.5%9.0% Range Range 4-16% Global Equities MSCI iShares ACWI Index ETF 6,552,201 3.4%7,194,598 3.6% American Funds New Perspective F2 2,831,922 1.4%3,045,046 1.5% MFS Global Equity FD CL R5 #4818 2,818,603 1.4%3,047,818 1.5% Total Global Equities 12,202,727$ 6.2%13,287,462$ 6.6%7.0% Range Range 4-12% Asset Allocation Period Ending September 30, 2016 13 6/30/2016 6/30/2016 9/30/2016 9/30/2016 Target Asset Allocation Market Value % of Total Market Value % of Total Allocation Real Estate Nuveen Real Estate Secs I Fund 8,852,548 4.5%8,943,831 4.4%-- Total Real Estate 8,852,548$ 4.5%8,943,831$ 4.4%4.0% Range Range 0-8% Fixed Income Core Fixed Income Holdings 53,865,308 27.6%57,826,648 28.7%-- PIMCO Total Return Instl Fund 8,582,406 4.4%8,565,618 4.3%-- Prudential Total Return Bond Q 8,459,784 4.3%8,579,339 4.3%-- PIMCO High Yield Instl 3,578 0.0%------ Total Fixed Income 70,911,076$ 36.3%74,971,605$ 37.3%38.0% Range Range 30-50% Alternatives AQR Managed Futures I 8,400,224 4.3%8,182,141 4.1%-- Eaton Vance Glbl Macro Abs Ret I 8,112,085 4.2%8,534,269 4.2%-- AQR Equity Market Neutral I 4,776,932 2.4%5,558,644 2.8%-- Total Alternatives 21,289,241$ 10.9%22,275,054$ 11.1%10.0% Range Range 5-20% Cash Money Market 8,759,419 4.5%1,681,261 0.8%-- Total Cash 8,759,419$ 4.5%1,681,261$ 0.8%1.0% Range Range 0-5% TOTAL 195,469,693$ 100.0%201,253,665$ 100.0%100.0% Asset Allocation Period Ending September 30, 2016 *Ending Market Value differs from total market value on the previous page due to differences in reporting methodology. The above ending market value is reported as of trade date and includes accruals. The Asset Allocation total market value is reported as of settlement date. 14 Investment Summary Third Quarter 2016 Year to Date 2016 Beginning Value 195,885,034.30$ 175,078,576.28$ Net Contributions/Withdrawals -39,944.37 14,959,999.01 Fees Deducted -45,187.25 -132,741.45 Income Received 1,087,359.87 2,953,806.91 Market Appreciation 4,781,743.33 8,826,225.87 Net Change in Accrued Income -54,683.92 -71,544.66 Ending Market Value*201,614,321.96$ 201,614,321.96$ Investment Summary Third Quarter 2015 Year to Date 2015 Beginning Value 173,251,842.30$ 155,218,379.57$ Net Contributions/Withdrawals -43,438.67 15,040,527.02 Fees Deducted -44,070.96 -130,618.60 Income Received 956,321.65 2,117,972.48 Market Appreciation -7,268,241.25 -5,594,084.50 Net Change in Accrued Income -178,107.55 22,129.55 Ending Market Value 166,674,305.52$ 166,674,305.52$ Investment Summary Period Ending September 30, 2016 INVESTMENT STRATEGY As of September 30, 2016 Tactical Asset Allocation Asset Class % Portfolio Weighting Rationale Target Current Portfolio Over/Under Weighting Cash 1.0% 1.0% - Fixed Income 38.0% 37.5% -0.5%  We believe the Fed will likely raise rates 1 – 2 times in calendar year 2017. Our year-end 2017 target for the 10- year treasury is 2.0%- 2.25%, which implies modest return expectations from current levels. Alternatives 10.0% 11.0% +1.0% Alternatives serve to mitigate the impact of a decline in the bond market, due to a potential rise in interest rates. Additionally near-term expectations for cash and equities remain depressed due to the low interest rate environment, equity market valuations, and earnings growth expectations. Real Estate (REITS) 4.0% 4.5% +0.5% Earnings and cash flow fundamentals are improving for REITs. Employment trends are providing additional support for REITs. Our expectation of a modest increase in interest rates by the Federal Reserve should not be too restrictive to REITs. Global Equity 7.0% 6.5% -0.5% Global equities remain at reasonable valuations due to the international equity component of the MSCI ACWI benchmark. International (Developed) 9.0% 10.0% +1.0% Developed international equity markets are viewed as attractive on a relative valuation basis, with superior earnings growth potential supported by earlier stages of the economic recovery cycle. We are monitoring the potential headwinds from the “Brexit”. International (Emerging) 0.0% 1.5% +1.5% Strong recent emerging market performance has been supported by global policy stimulus. Modest interest rate normalization in the U.S. should be gradual and should not lead to strong gains for the USD. Emerging market valuations are reasonably attractive and earnings revision downgrades have stopped. Total Domestic Equity 31.0% 28.0% -3.0% Large Cap 17.0% 16.0% -1.0% The multi-year outperformance of domestic equities has generated stretched valuations, thereby reducing risk premiums and degrading the near-term risk/reward outlook. Mid Cap 6.0% 3.5% -2.5% We continue to remain underweight based on valuation concerns, with the Russell Mid-Cap Index trading at a 18X forward PE ratio. Small Cap 8.0% 8.5% +0.5% We maintain a slight overweight to small cap stocks. Earnings estimates have come down considerably for small cap equities. Additionally, there is low analyst dispersion related to earnings, which tends to imply less uncertainty. 15 Inception Date: 02/01/2011 * Benchmark from February 1, 2011 to June 30, 2013: 18% Russell 1000 Index, 6% Russell Midcap Index, 8% Russell 2000 Index, 8% MSCI ACWI Index, 10% MSCI EAFE Index, 45% Barclays Aggregate Index, 4% DJ Wilshire REIT Index, 1% Citigroup 3 Month T-Bill Index. From July 1, 2013 to June 30, 2015: 17% Russell 1000 Index, 6% Russell Midcap Index, 8% Russell 2000 Index, 7% MSCI AC World US Index, 9% MSCI EAFE Index, 38% Barclays Aggregate Index, 4% DJ Wilshire REIT Index, 10% HFRI FOF Market Defensive Index, 1% Citigroup 3 Month T-Bill Index. From July 1, 2015: 17% Russell 1000 Index, 6% Russell Midcap Index, 8% Russell 2000 Index, 7% MSCI AC World Index, 9% MSCI EAFE Index, 38% Barclays Aggregate Index, 4% DJ Wilshire REIT Index, 10% Wilshire Liquid Alternative Index, 1% Citigroup 3 Month T-Bill Index ** Dynamic Alternatives Index represents the HFRI FOF Market Defensive Index from 07/01/2013 until 06/30/2015, and then the W ilshire Liquid Alternatives Index from 07/01/2015 forwards. Returns are gross-of-fees unless otherwise noted. Returns for periods over one year are annualized. The information presented has been obtained from sources believed to be accurate and reliable. Past performance is not indicative of future returns. Securities are not FDIC insured, have no bank guarantee, and may lose value. 16 Sector 3 Months Year to Date (9 Months) 1 Year 3 Years 5 Years Inception to Date (68 Months) Cash Equivalents .06 .20 .22 .09 .06 .06 iMoneyNet, Inc. Taxable .03 .08 .09 .04 .03 .03 Fixed Income ex Funds .50 6.34 5.65 4.02 3.47 4.24 Total Fixed Income .69 6.35 5.81 3.97 3.88 4.29 BC US Aggregate Bd Index .46 5.80 5.19 4.03 3.08 3.87 Total Equities 5.43 7.38 12.59 6.66 13.27 8.21 Large Cap Funds 5.22 6.35 13.34 9.77 16.10 10.66 Russell 1000 Index 4.03 7.92 14.93 10.78 16.41 11.93 Mid Cap Funds 4.41 10.13 13.44 7.53 14.24 9.34 Russell Midcap Index 4.52 10.26 14.25 9.70 16.67 11.53 Small Cap Funds 8.13 10.82 14.55 7.88 17.43 11.42 Russell 2000 Index 9.05 11.46 15.47 6.71 15.82 10.20 REIT Funds -1.58 9.22 18.52 13.79 15.35 11.17 Wilshire REIT Index -1.21 9.75 17.94 14.34 15.82 12.05 International Equities 6.32 5.67 9.50 1.88 8.56 3.57 MSCI AC World Index 5.30 6.60 11.96 5.17 10.63 6.25 MSCI EAFE Index 6.43 1.73 6.52 .47 7.39 3.06 MSCI EM Free Index 9.03 16.02 16.78 -.56 3.03 -1.23 Alternatives .16 1.38 .38 3.27 Dynamic Alternatives Index 1.45 2.42 1.29 1.74 -.07 -.75 Total Managed Portfolio 2.97 6.15 8.35 5.13 8.55 5.91 Total Account Net of Fees 2.94 6.07 8.25 5.01 8.42 5.79 County of Contra Costa 2.90 6.57 9.13 5.67 8.53 6.53 Selected Period Performance PARS/COUNTY OF CONTRA COSTA PRHCP Account 6746038001 Period Ending: 09/30/2016 COUNTY OF CONTRA COSTA 17 3-Month YTD 1-Year 3-Year 5-Year Fund Name Inception Return Rank Return Rank Return Rank Return Rank Return Rank Columbia Contrarian Core Z (7/13)4.27 36 6.65 46 14.97 18 11.09 6 17.42 1 T. Rowe Price Growth Stock I 7.88 14 1.47 78 10.25 54 11.11 19 17.41 22 Harbor Capital Appreciation Instl 8.16 11 0.89 85 9.05 70 11.28 17 15.99 21 Loomis Sayles Value Fund (7/11)3.07 62 4.57 87 9.92 83 7.15 65 15.16 32 Dodge & Cox Stock (10/14)8.79 2 9.55 27 14.53 33 8.91 25 17.10 48 iShares Russell 1000 (3/15)4.00 39 7.82 54 14.80 51 10.65 42 16.26 59 Idx: Russell 1000 4.03 -7.92 -14.93 -10.78 -16.41 - iShares Russell Mid-Cap (3/15)4.45 43 10.09 38 14.04 42 9.51 18 16.48 70 Russell Mid Cap TR USD 4.52 -10.26 -14.25 -9.70 -16.67 - Undiscovered Mgrs Behavioral Value Inst (9/16)7.21 51 11.68 51 17.66 27 10.51 2 20.65 1 Idx: Russell 2000 Value 8.87 -15.49 -18.81 -6.77 -15.45 - iShares Russell 2000 (3/15)9.04 15 11.50 65 15.57 54 6.77 67 15.87 62 T. Rowe Price New Horizons I 7.77 52 8.76 33 14.37 24 9.45 5 18.96 1 Idx: Russell 2000 Growth 9.22 -7.48 -12.12 -6.58 -16.15 - Dodge & Cox International Stock 10.15 4 4.74 26 5.62 58 0.06 60 8.17 21 Nationwide Bailard Intl Eqs Instl 4.87 83 0.76 75 4.99 65 2.71 11 8.93 22 MFS International Growth I 6.48 38 8.71 8 12.81 14 2.22 40 8.39 15 MFS Global Equity R5 (3/15)5.10 58 8.04 22 12.27 25 6.21 22 13.55 16 iShares MSCI EAFE (3/15)6.36 40 1.74 79 6.45 75 0.37 72 7.27 100 iShares MSCI ACWI (3/15)5.19 43 6.79 75 12.32 62 5.44 46 10.84 - American Funds New Perspective F2 (3/15)5.74 43 4.04 68 11.14 38 7.25 13 13.21 5 Idx: MSCI EAFE 6.43 -1.73 -6.52 -0.48 -7.39 - Idx: MSCI ACWI 5.30 -6.60 -11.96 -5.17 -10.63 - Schroder Emerging Market Equity (11/12)10.28 9 16.25 34 16.92 39 -0.43 50 4.25 26 Idx: MSCI Emerging Markets 9.03 -16.02 -16.78 --0.56 -3.03 - Data Source: Morningstar, SEI Investments believed accurate and reliable. Securities are not FDIC insured, have no bank guarantee and may lose value. For Period Ending September 30, 2016 Returns less than one year are not annualized. Past performance is not indicative of future returns. The information presented has been obtained LARGE CAP EQUITY FUNDS MID CAP EQUITY FUNDS SMALL CAP EQUITY FUNDS INTERNATIONAL EQUITY FUNDS COUNTY OF CONTRA COSTA 18 3-Month YTD 1-Year 3-Year 5-Year Fund Name Inception Return Rank Return Rank Return Rank Return Rank Return Rank Nuveen Real Estate Secs Y -1.41 49 9.99 35 18.50 15 13.94 24 15.52 6 Idx: Wilshire REIT Index -1.21 -9.75 -17.94 -14.34 -15.82 - Core Fixed Income Portfolio 0.50 78 6.34 37 5.65 36 4.02 35 3.47 50 Pimco Total Return Inst'l 1.24 27 5.18 76 5.69 35 3.51 64 4.18 5 Prudential Total Return Bond Fund Class Q (5/16)1.41 19 8.08 5 7.27 5 5.33 3 5.14 2 Idx: BarCap US Aggregate Bond 0.46 -5.80 -5.19 -4.03 -3.08 - ML US HY BB-B Constrained 5.00 -13.29 -12.01 -5.60 -8.01 - AQR Managed Futures (7/13)-2.60 67 -0.49 55 -4.01 65 6.15 33 4.09 - AQR Equity Market Neutral I (2/16)1.39 28 1.66 51 3.97 31 ---- Eaton Vance Glbl Macro Abs Ret (7/13)2.14 47 3.68 53 6.22 24 3.47 21 2.79 - Idx: Dynamic Alternatives 1.45 -2.42 -1.29 -1.74 --0.07 - Data Source: Morningstar, SEI Investments believed accurate and reliable. Securities are not FDIC insured, have no bank guarantee and may lose value. For Period Ending September 30, 2016 Returns less than one year are not annualized. Past performance is not indicative of future returns. The information presented has been obtained ALTERNATIVE FUNDS REIT EQUITY FUNDS BOND FUNDS COUNTY OF CONTRA COSTA 19 2015 2014 2013 2012 2011 2010 Fund Name Inception Return Rank Return Rank Return Rank Return Rank Return Rank Return Rank Columbia Contrarian Core Z (7/13)3.02 9 12.92 31 35.73 17 18.67 10 -0.93 52 16.21 17 T. Rowe Price Growth Stock 10.85 4 8.83 65 39.20 12 18.92 14 -0.97 39 16.93 35 Harbor Capital Appreciation Instl 10.99 4 9.93 53 37.66 17 15.69 43 0.61 24 11.61 82 Loomis Sayles Value Fund (7/11)-4.19 58 10.76 48 35.54 14 19.70 4 -2.81 66 11.94 72 Dodge & Cox Stock (10/14)-4.49 62 10.40 54 40.55 2 22.01 2 -4.08 74 13.49 47 iShares Russell 1000 ETF 0.82 34 13.08 42 32.93 37 16.27 12 1.36 60 15.94 49 Idx: Russell 1000 0.92 --13.24 --33.11 --16.42 --1.50 --16.10 -- iShares Russell Mid-Cap ETF -2.57 39 13.03 17 34.50 74 17.13 52 -1.67 42 25.25 73 Columbia Small Cap Value II Z -2.90 15 4.61 42 40.14 20 14.57 61 -2.39 30 25.64 52 Idx: Russell 2000 Value -3.83 --4.22 --34.52 --18.05 ---5.50 --24.50 -- T. Rowe Price New Horizons 4.50 7 6.10 19 49.11 10 16.20 22 6.63 2 34.67 12 Idx: Russell 2000 Growth -1.38 --5.60 --43.30 --14.59 ---2.91 --29.09 -- iShares Russell 2000 ETF -4.33 31 4.94 55 38.85 76 16.39 47 -4.19 56 26.76 69 Dodge & Cox International Stock -11.35 98 0.08 9 26.31 8 21.03 16 -15.97 81 13.69 6 Nationwide Bailard Intl Eqs InSvc 0.86 24 -1.94 15 21.68 28 20.87 17 -15.58 74 11.85 32 MFS International Growth I 0.30 55 -5.10 58 13.84 79 19.71 31 -10.62 40 15.24 35 iShares MSCI EAFE Index Fund -0.90 45 -5.04 78 22.62 19 17.22 41 -12.18 25 7.52 92 Idx: MSCI EAFE -0.81 ---4.90 --22.78 --17.32 ---12.14 --7.75 -- Schroder Emerging Market Equity (11/12)-12.68 37 -4.61 70 -2.28 54 21.73 19 -16.70 20 13.49 92 Idx: MSCI Emerging Markets -14.92 ---2.19 ---2.60 --18.22 ---18.42 --18.88 -- SPDR EURO STOXX 50 ETF (6/14)-4.26 84 -8.36 73 27.43 34 20.48 55 -16.42 48 -8.94 95 American Funds New Perspective F2 5.56 6 3.46 41 27.11 39 39.00 15 -7.39 44 13.01 46 MFS Global Equity R5 -1.34 48 4.08 33 27.93 34 34.00 4 -5.13 25 10.95 55 iShares MSCI ACWI -2.39 46 4.64 34 22.91 54 54.00 30 -7.60 71 12.31 34 Idx: MSCI ACWI -2.36 --4.16 --22.80 --16.13 ---7.35 --12.67 -- Nuveen Real Estate Secs Y 3.48 37 31.28 17 1.32 58 18.34 22 7.96 50 30.57 12 Idx: Wilshire REIT 4.23 --31.78 --1.86 --17.59 --5.52 ------ Data Source: Morningstar, SEI Investments believed accurate and reliable. Securities are not FDIC insured, have no bank guarantee and may lose value. REIT EQUITY FUNDS Returns less than one year are not annualized. Past performance is not indicative of future returns. The information presented has been obtained from sources For Period Ending December 31, 2015 LARGE CAP EQUITY FUNDS MID CAP EQUITY FUNDS SMALL CAP EQUITY FUNDS INTERNATIONAL EQUITY FUNDS COUNTY OF CONTRA COSTA 20 2015 2014 2013 2012 2011 2010 Fund Name Inception Return Rank Return Rank Return Rank Return Rank Return Rank Return Rank Core Fixed Income Portfolio 0.78 14 4.74 70 -1.40 41 5.42 69 8.41 5 ---- Pimco Total Return Inst'l 0.73 15 4.69 71 -1.92 60 10.36 12 4.16 87 8.83 26 Idx: BarCap US Aggregate Bond .55 --5.97 ---2.02 --4.21 --7.84 --6.54 -- PIMCO High Yield Instl (11/14)-1.85 22 3.31 13 5.77 68 14.55 52 4.00 38 14.24 45 Idx: Merrill Lynch US High Yield BB-B -2.79 --3.49 --6.31 --14.59 --5.39 --14.26 -- Arbitrage I (Sold 11/15)(7/13)0.90 39 1.64 39 1.15 67 0.44 48 4.74 20 1.76 16 AQR Managed Futures (7/13)2.00 31 9.69 40 9.40 6 2.99 5 -6.37 29 0.00 0 Eaton Vance Glbl Macro Abs Ret (7/13)2.63 7 3.03 18 -0.24 58 4.11 79 -0.39 44 4.75 61 JPMorgan Research Market Neutral Instl (7/13)-3.61 74 3.38 25 2.26 56 4.51 9 -7.04 86 -0.90 36 Data Source: Morningstar, SEI Investments believed accurate and reliable. Securities are not FDIC insured, have no bank guarantee and may lose value. BOND FUNDS ALTERNATIVE FUNDS Returns less than one year are not annualized. Past performance is not indicative of future returns. The information presented has been obtained from sources For Period Ending December 31, 2015 RECOMMENDATION(S): ADOPT Resolution No. 2016/666 as approved by the Retirement Board, which establishes retirement plan contribution rates effective July 1, 2017 through June 30, 2018. FISCAL IMPACT: See 'Background' below. BACKGROUND: At its October 20, 2016 meeting, the Retirement Board reviewed and accepted the actuary’s valuation report for the year ending December 31, 2015 and adopted the recommended employer and employee contribution rates, which will become effective on July 1, 2017. A copy of the December 31, 2015 Actuarial Valuation can be found on CCCERA’s website at www.cccera.org under the Actuarial Valuations link. Attached are the rates to be used effective July 1, 2017 through June 30, 2018 submitted for adoption by the County Board of Supervisors by the Contra Costa County Employees’ Retirement Association. Please note the following: The rates are effective July 1, 2017 through June 30, 2018. The rates are before employer subvention, if any, of the employee contribution. The rates quoted here are the employer required rates without taking into consideration any employer subvention of employee contributions. A convenient methodology for adding subvention is included on page 20 of the attached document. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Lisa Driscoll, County Finance Director 335-1023 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Robert Campbell, County Auditor-Controller, Laura Strobel, Senior Deputy County Administrator, Harjit S. Nahal, Assistant County Auditor C.113 To:Board of Supervisors From:David Twa, County Administrator Date:December 6, 2016 Contra Costa County Subject:EMPLOYEE RETIREMENT PLAN CONTRIBUTION RATES FOR FISCAL YEAR 2017/2018 BACKGROUND: (CONT'D) > The rates are before any increase in employee rate to pay a portion of the employer contribution. If an employee’s rate needs to be increased to pay a portion of the employer contribution, both employee and employer rates would need to be adjusted accordingly. A convenient methodology for adding subvention is included on page 20 of the attached document. CONSEQUENCE OF NEGATIVE ACTION: Rates will not reflect those adopted by the Contra Costa County Employees Retirement Board. ATTACHMENTS Resolution No. 2016/666 Contribution Rate Packet FY 2017/2018 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA and for Special Districts, Agencies and Authorities Governed by the Board Adopted this Resolution on 12/06/2016 by the following vote: AYE: NO: ABSENT: ABSTAIN: RECUSE: Resolution No. 2016/666 Subject: Approving Contribution Rates to be charged by the Contra Costa County Employees' Retirement Association Pursuant to Government Code Section 31454 and on recommendation of the Board of the Contra Costa County Employees’ Retirement Association, BE IT RESOLVED that the following contribution rates are approved to be effective for the period July 1, 2017 through June 30, 2018. I. Employer Contribution Rates for Basic and Cost-of-Living Components and Non-refundability Discount Factors For General Members (Sec. 31676.11, Sec. 31676.16 and Sec. 7522.20(a)) See attached Exhibit AA. For Safety Members (Sec. 31664, Sec. 31664.1 and Sec. 7522.25(d)) See attached Exhibit BB. II. Employee Contribution Rates for Basic and Cost-of-Living Components See attached Exhibits C through O The Pension Obligation Bonds (POB) issued by the County in March 1994 and April 2003, affected contribution rates for certain County employers. The following non-County employers who participate in the Retirement Association are referred to as “Districts”. Bethel Island Municipal Improvement District Byron, Brentwood Knightsen Union Cemetery District Central Contra Costa Sanitary District Contra Costa County Employees’ Retirement Association Contra Costa County Fire Protection District Contra Costa Housing Authority Contra Costa Mosquito and Vector Control District East Contra Costa Fire Protection District First 5 - Children & Families Commission In-Home Supportive Services Authority Local Agency Formation Commission (LAFCO) Moraga-Orinda Fire Protection District Rodeo-Hercules Fire Protection District Rodeo Sanitary District San Ramon Valley Fire Protection District All other departments/employers are referred to as “County” including the Superior Court of California, Contra Costa County. Contra Costa County Fire Protection District and Moraga-Orinda Fire Protection District issued Pension Obligation Bonds in 2005 which affected contribution rates for these two employers. Subsequently, Contra Costa County Fire Protection District has made additional payments to CCCERA for its UAAL in 2006 and 2007. First 5 - Children & Families Commission made a UAAL prepayment in 2013 which affected contribution rates for that employer. Central Contra Costa Sanitary District made a UAAL prepayment in 2013, 2014, and 2015 which affected contribution rates for that employer. Contact: Lisa Driscoll, County Finance Director 335-1023 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: Robert Campbell, County Auditor-Controller, Laura Strobel, Senior Deputy County Administrator, Harjit S. Nahal, Assistant County Auditor 1    TABLE OF CONTENTS Page Description 1. Table of Contents 2. Employer Rates & Refundability Discount Factors for General Tier 1 and 3 (Exhibit A - 1) 3. Employer Rates & Refundability Discount Factors for General PEPRA Tier 4 and 5 with 2% Maximum COLA (Exhibit A - 2) 4. Employer Rates & Refundability Discount Factors for General PEPRA Tier 4 and 5 with 3% Maximum COLA (Exhibit A - 3) 5. Employer Rates & Refundability Discount Factors for Safety Tier A and C (Exhibit B - 1) 6. Employer Rates & Refundability Discount Factors for Safety PEPRA Tier D and E (Exhibit B - 2) 7. General Non-PEPRA Cost Group #1 Member Rates (Exhibit C) 8. General Non-PEPRA Cost Group #2 Member Rates (Exhibit D) 9. General Non-PEPRA Cost Group #3 Member Rates (Exhibit E) 10. General Non-PEPRA Cost Group #4 Member Rates (Exhibit F) 11. General Non-PEPRA Cost Group #5 Member Rates (Exhibit G) 12. General Non-PEPRA Cost Group #6 Member Rates (Exhibit H) 13. Safety Non-PEPRA Cost Group #7 Member Rates (Exhibit I) 14. Safety Non-PEPRA Cost Group #8 Member Rates (Exhibit J) 15. Safety Non-PEPRA Cost Group #9 Member Rates (Exhibit K) 16. Safety Non-PEPRA Cost Group #10 Member Rates (Exhibit L) 17. Safety Non-PEPRA Cost Group #11 Member Rates (Exhibit M) 18. Safety Non-PEPRA Cost Group #12 Member Rates (Exhibit N) 19. General and Safety PEPRA Member Rates (Exhibit O) 20. Examples for Subvention and Employee Cost Sharing 21. Prepayment Discount Factor for 2017-18 Exhibit A - 1CONTRA COSTA COUNTY EMPLOYEES' RETIREMENT ASSOCIATIONEMPLOYER CONTRIBUTION RATES EFFECTIVE FOR JULY 1, 2017 THROUGH JUNE 30, 2018 for General Tier 1 and 3 Legacy MembersCost Group #3 Cost Group #4 Cost Group #5GENERAL TIERS - ENHANCEDMoraga-Orinda Districts Central Contra Costa Contra Costa Contra Costa CountyTier 1 BASIC Enhanced CountyFire DistrictFirst 5without POBSanitary DistrictHousing AuthorityFire Protection DistrictFirst $350 monthly & in Social Security 16.42% N/A 16.02% 20.09% N/A20.42% N/AExcess of $350 monthly & in Social Security 24.29% N/A 23.69% 29.79% N/A 30.30% N/A All Eligible $ if NOT in Social Security24.29% 19.40% N/A 29.79% 38.66% N/A 22.40%Tier 1 COL Enhanced First $350 monthly 3.94% N/A 3.81% 6.90% N/A 9.15% N/AExcess of $350 monthly 5.91% N/A 5.72% 10.36% N/A 13.71% N/A All Eligible $ if NOT in Social Security5.91% 4.41% N/A 10.36% 14.73% N/A 9.01%Non-Refundability Factor0.95980.95980.95980.95980.95800.95620.9586Cost GroupEmployer NameTierDistrictsCost Group #1 County General Tier 1 Enhanced (2% @ 55)Tier 3 BASIC Enhanced Countywithout POBLAFCOFirst $350 monthly 16.45% 20.18% CC Mosquito & Vector Control DistrictExcess of $350 monthly 24.34% 29.94% Bethel Island Municipal Improvement DistrictFirst 5 - Children and Families Commission All Eligible $ if NOT in Social SecurityN/A 29.94% Contra Costa County Employees' Retirement AssociationSuperior CourtTier 3 COL Enhanced East Contra Costa Fire Protection DistrictFirst $350 monthly 3.88% 6.89% Moraga-Orinda Fire Protection DistrictExcess of $350 monthly 5.82% 10.32% Rodeo-Hercules Fire Protection DistrictSan Ramon Valley Fire Protection District All Eligible $ if NOT in Social SecurityN/A 10.32%Cost Group #2 County General Tier 3 Enhanced (2% @ 55)Non-Refundability Factor0.95700.9570In-Home Supportive ServicesCC Mosquito & Vector Control DistrictCost Group #6Superior CourtGENERAL TIER NON-ENHANCEDDistrictsTier 1 BASIC NON-Enhancedwithout POBCost Group #3 Central Contra Costa Sanitary District Tier 1 Enhanced (2% @ 55)First $350 monthly 15.74%Excess of $350 monthly 23.27% Cost Group #4 Contra Costa Housing Authority Tier 1 Enhanced (2% @ 55) All Eligible $ if NOT in Social SecurityN/A Cost Group #5 Contra Costa County Fire Protection District Tier 1 Enhanced (2% @ 55)Tier 1 COL NON-Enhanced Cost Group #6 Rodeo Sanitary District Tier 1 Non-enhanced (1.67% @ 55)First $350 monthly 2.23% Byron Brentwood Cemetery DistrictExcess of $350 monthly 3.36%Basic rates shown include an administrative expense load of 0.67% of payroll. All Eligible $ if NOT in Social SecurityN/ANon-Refundability Factor0.9509Cost Group #1Cost Group #2All Cost Groups 2017-18Exhibit A-1 Page 211/15/2016 Exhibit A - 2CONTRA COSTA COUNTY EMPLOYEES' RETIREMENT ASSOCIATIONEMPLOYER CONTRIBUTION RATES EFFECTIVE FOR JULY 1, 2017 THROUGH JUNE 30, 2018 for General Tier 4 and 5 PEPRA Members with 2% Maximum COLACost Group #3 Cost Group #4 Cost Group #5 Cost Group #6GENERAL PEPRA TIERS Moraga-Orinda Districts Central Contra Costa Contra Costa Contra Costa County DistrictsTier 4 BASICCountyFire DistrictFirst 5without POBSanitary DistrictHousing AuthorityFire Protection Districtwithout POB All Eligible $ 20.68% N/A N/A N/A N/A N/A 19.86% N/ATier 4 COL All Eligible $ 4.37% N/A N/A N/A N/A N/A 7.75% N/ANon-Refundability Factor 0.9599N/A N/A N/A N/A N/A 0.9643 N/ACost GroupEmployer NameTierDistrictsCost Group #1 County General Tier 4 (2.5% @ 67)Tier 5 BASIC Countywithout POBLAFCO All Eligible $ 19.95% 25.47% CC Mosquito & Vector Control DistrictBethel Island Municipal Improvement DistrictTier 5 COLFirst 5 - Children and Families Commission All Eligible $ 4.20% 8.62% Contra Costa County Employees' Retirement AssociationSuperior CourtNon-Refundability Factor 0.9623 0.9623East Contra Costa Fire Protection DistrictMoraga-Orinda Fire Protection DistrictRodeo-Hercules Fire Protection DistrictSan Ramon Valley Fire Protection DistrictCost Group #2 County General Tier 5 (2.5% @ 67)In-Home Supportive ServicesCC Mosquito & Vector Control DistrictSuperior CourtCost Group #3 Central Contra Costa Sanitary DistrictTier 4 (2.5% @ 67)Cost Group #4 Contra Costa Housing AuthorityTier 4 (2.5% @ 67)Cost Group #5 Contra Costa County Fire Protection DistrictTier 4 (2.5% @ 67)Cost Group #6 Rodeo Sanitary DistrictTier 4 (2.5% @ 67)Byron Brentwood Cemetery DistrictSome tiers are not applicable to employers as shown above in the rate table.Basic rates shown include an administrative expense load of 0.67% of payroll.Cost Group #1Cost Group #2All Cost Groups 2017-18Exhibit A-2 Page 311/15/2016 Exhibit A - 3CONTRA COSTA COUNTY EMPLOYEES' RETIREMENT ASSOCIATIONEMPLOYER CONTRIBUTION RATES EFFECTIVE FOR JULY 1, 2017 THROUGH JUNE 30, 2018 for General Tier 4 and 5 PEPRA Members with 3% Maximum COLACost Group #3 Cost Group #4 Cost Group #5 Cost Group #6GENERAL PEPRA TIERS Moraga-Orinda Districts Central Contra Costa Contra Costa Contra Costa County DistrictsTier 4 BASICCountyFire DistrictFirst 5without POBSanitary DistrictHousing AuthorityFire Protection Districtwithout POB All Eligible $ 20.98% 16.45% 20.39% 26.50% 34.13% 25.52% 21.29% 19.19%Tier 4 COL All Eligible $ 5.42% 4.01% 5.23% 9.84% 13.88% 12.77% 9.32% 2.75%Non-Refundability Factor 0.9594 0.9594 0.9594 0.9594 0.96400.96800.96570.9672Cost GroupEmployer NameTierDistrictsCost Group #1 County General Tier 4 (2.5% @ 67)Tier 5 BASIC Countywithout POBLAFCO All Eligible $ 20.12% 25.64% CC Mosquito & Vector Control DistrictBethel Island Municipal Improvement DistrictTier 5 COL First 5 - Children and Families Commission All Eligible $ 5.12% 9.54% Contra Costa County Employees' Retirement AssociationSuperior CourtNon-Refundability Factor 0.96420.9642East Contra Costa Fire Protection DistrictMoraga-Orinda Fire Protection DistrictRodeo-Hercules Fire Protection DistrictSan Ramon Valley Fire Protection DistrictCost Group #2 County General Tier 5 (2.5% @ 67)In-Home Supportive ServicesCC Mosquito & Vector Control DistrictSuperior CourtCost Group #3 Central Contra Costa Sanitary DistrictTier 4 (2.5% @ 67)Cost Group #4 Contra Costa Housing AuthorityTier 4 (2.5% @ 67)Cost Group #5 Contra Costa County Fire Protection DistrictTier 4 (2.5% @ 67)Cost Group #6 Rodeo Sanitary DistrictTier 4 (2.5% @ 67)Byron Brentwood Cemetery DistrictBasic rates shown include an administrative expense load of 0.67% of payroll.Cost Group #1Cost Group #2All Cost Groups 2017-18Exhibit A-3 Page 411/15/2016 Exhibit B - 1CONTRA COSTA COUNTY EMPLOYEES' RETIREMENT ASSOCIATIONEMPLOYER CONTRIBUTION RATES EFFECTIVE FOR JULY 1, 2017 THROUGH JUNE 30, 2018 for Safety Tier A and C Legacy MembersCost Group #7 Cost Group #10 Cost Group #11SAFETY TIERS ENHANCEDContra Costa County East Contra Costa Moraga-Orinda San Ramon ValleySafety A BASIC EnhancedCountyFire Protection DistrictFire Protection DistrictFire Protection DistrictFire Protection DistrictAll eligible $ 49.14% 42.93% 72.71% 38.85% 55.64%Safety A COL EnhancedAll eligible $ 27.64% 34.95% 57.67% 32.09% 27.74%Non-Refundability Factor0.96540.96680.96680.96800.9676Cost Group #9Cost GroupEmployer NameTierSafety C BASIC Enhanced CountyCost Group # 7 County Safety Tier A Enhanced (3% @ 50)All eligible $ 46.85%Cost Group # 8 Contra Costa County Fire Protection DistrictTier A Enhanced (3% @ 50)Safety C COL EnhancedEast Contra Costa Fire Protection DistrictAll eligible $ 24.81%Cost Group # 9 County SafetyTier C Enhanced (3% @ 50)Non-Refundability Factor0.9670Cost Group # 10 Moraga-Orinda Fire Protection DistrictTier A Enhanced (3% @ 50)Cost Group #12SAFETY TIER NON-ENHANCEDRodeo-HerculesCost Group # 11 San Ramon Valley Fire Protection District Tier A Enhanced (3% @ 50)Safety A BASIC NON-EnhancedFire Protection DistrictAll eligible $ 17.68% Cost Group # 12 Rodeo Hercules Fire Protection DistrictTier A Non-enhanced (2% @ 50)Monthly Contribution Towards UAAL$68,147Basic rates shown include an administrative expense load of 0.67% of payroll.Safety A COL NON-EnhancedAll eligible $ 5.70%Monthly Contribution Towards UAAL$43,065Non-Refundability Factor0.9679Cost Group #8All Cost Groups 2017-18Exhibit B-1 Page 511/15/2016 Exhibit B - 2CONTRA COSTA COUNTY EMPLOYEES' RETIREMENT ASSOCIATIONEMPLOYER CONTRIBUTION RATES EFFECTIVE FOR JULY 1, 2017 THROUGH JUNE 30, 2018 for Safety Tier D and E PEPRA MembersCost Group #7 Cost Group #10 Cost Group #11 Cost Group #12SAFETY PEPRA TIERS Contra Costa County East Contra Costa Moraga-Orinda San Ramon Valley Rodeo-HerculesSafety D BASIC (3% Maximum COLA)CountyFire Protection DistrictFire Protection DistrictFire Protection DistrictFire Protection DistrictFire Protection DistrictAll eligible $ 42.04% 35.84% 65.62% 31.36% 47.80% 11.96%Monthly Contribution Towards UAAL N/A N/A N/A N/A N/A $16,250Safety D COL (3% Maximum COLA)All eligible $ 26.78% 34.01% 56.73% 30.88% 26.56% 5.10%Monthly Contribution Towards UAAL N/A N/A N/A N/A N/A $10,269Non-Refundability Factor 0.9739 0.9768 0.9768 0.9783 0.9784 0.9806Cost Group #8 Cost Group #9Cost GroupEmployer NameTierContra Costa CountyCost Group # 7 County Safety Tier D (2.7% @ 57)Safety E BASIC (2% Maximum COLA)Fire Protection DistrictCounty All eligible $ 37.44% 39.80% Cost Group # 8 Contra Costa County Fire Protection District Tier D (2.7% @ 57)East Contra Costa Fire Protection DistrictSafety E COL (2% Maximum COLA)Contra Costa County Fire Protection District Tier E (2.7% @ 57)All eligible $ 32.31% 24.15%Cost Group # 9 County Safety Tier E (2.7% @ 57)Non-Refundability Factor 0.9693 0.9748Cost Group # 10 Moraga-Orinda Fire Protection District Tier D (2.7% @ 57)Cost Group # 11 San Ramon Valley Fire Protection District Tier D (2.7% @ 57)Cost Group # 12 Rodeo Hercules Fire Protection District Tier D (2.7% @ 57)Basic rates shown include an administrative expense load of 0.67% of payroll.Cost Group #8All Cost Groups 2017-18Exhibit B-2 Page 611/15/2016 Exhibit C GENERAL Cost Group #1 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 5.41% 2.61% 8.02% 16 5.50% 2.66% 8.16% 17 5.59% 2.71% 8.30% 18 5.68% 2.76% 8.44% 19 5.77% 2.80% 8.57% 20 5.86% 2.85% 8.71% 21 5.96% 2.91% 8.87% 22 6.05% 2.95% 9.00% 23 6.15% 3.01% 9.16% 24 6.25% 3.06% 9.31% 25 6.35% 3.11% 9.46% 26 6.45% 3.16% 9.61% 27 6.56% 3.22% 9.78% 28 6.66% 3.28% 9.94% 29 6.77% 3.33% 10.10% 30 6.88% 3.39% 10.27% 31 6.99% 3.45% 10.44% 32 7.10% 3.51% 10.61% 33 7.21% 3.57% 10.78% 34 7.33% 3.63% 10.96% 35 7.45% 3.69% 11.14% 36 7.57% 3.76% 11.33% 37 7.69% 3.82% 11.51% 38 7.82% 3.89% 11.71% 39 7.95% 3.96% 11.91% 40 8.08% 4.03% 12.11% 41 8.22% 4.10% 12.32% 42 8.36% 4.18% 12.54% 43 8.50% 4.25% 12.75% 44 8.65% 4.33% 12.98% 45 8.81% 4.41% 13.22% 46 8.95% 4.49% 13.44% 47 9.10% 4.57% 13.67% 48 9.25% 4.65% 13.90% 49 9.41% 4.73% 14.14% 50 9.57% 4.82% 14.39% 51 9.73% 4.90% 14.63% 52 9.90% 4.99% 14.89% 53 10.06% 5.08% 15.14% 54 10.18% 5.14% 15.32% 55 10.32% 5.21% 15.53% 56 10.40% 5.25% 15.65% 57 10.39% 5.25% 15.64% 58 10.29% 5.20% 15.49% 59 10.02% 5.05% 15.07% 60 and over 10.02% 5.05% 15.07% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 52.92% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: For members in Social Security, the rate should only be applied to monthly compensation in excess of $116.67. The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit C Page 7 Exhibit D GENERAL Cost Group #2 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 5.40% 2.41% 7.81% 16 5.49% 2.45% 7.94% 17 5.58% 2.50% 8.08% 18 5.67% 2.54% 8.21% 19 5.76% 2.58% 8.34% 20 5.85% 2.63% 8.48% 21 5.94% 2.67% 8.61% 22 6.04% 2.72% 8.76% 23 6.14% 2.77% 8.91% 24 6.24% 2.82% 9.06% 25 6.34% 2.87% 9.21% 26 6.44% 2.92% 9.36% 27 6.54% 2.97% 9.51% 28 6.64% 3.01% 9.65% 29 6.75% 3.07% 9.82% 30 6.86% 3.12% 9.98% 31 6.97% 3.18% 10.15% 32 7.08% 3.23% 10.31% 33 7.20% 3.29% 10.49% 34 7.31% 3.34% 10.65% 35 7.43% 3.40% 10.83% 36 7.55% 3.46% 11.01% 37 7.68% 3.52% 11.20% 38 7.80% 3.58% 11.38% 39 7.93% 3.64% 11.57% 40 8.07% 3.71% 11.78% 41 8.20% 3.78% 11.98% 42 8.34% 3.85% 12.19% 43 8.49% 3.92% 12.41% 44 8.63% 3.99% 12.62% 45 8.78% 4.06% 12.84% 46 8.94% 4.14% 13.08% 47 9.09% 4.21% 13.30% 48 9.23% 4.28% 13.51% 49 9.38% 4.35% 13.73% 50 9.54% 4.43% 13.97% 51 9.72% 4.52% 14.24% 52 9.88% 4.60% 14.48% 53 10.03% 4.67% 14.70% 54 10.18% 4.74% 14.92% 55 10.28% 4.79% 15.07% 56 10.35% 4.83% 15.18% 57 10.32% 4.81% 15.13% 58 10.16% 4.73% 14.89% 59 10.04% 4.68% 14.72% 60 and over 10.04% 4.68% 14.72% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 48.86% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: For members in Social Security, the rate should only be applied to monthly compensation in excess of $116.67. The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit D Page 8 Exhibit E GENERAL Cost Group #3 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 5.62% 2.78% 8.40% 16 5.71% 2.83% 8.54% 17 5.80% 2.88% 8.68% 18 5.90% 2.93% 8.83% 19 5.99% 2.98% 8.97% 20 6.09% 3.03% 9.12% 21 6.18% 3.08% 9.26% 22 6.28% 3.14% 9.42% 23 6.39% 3.20% 9.59% 24 6.49% 3.25% 9.74% 25 6.59% 3.30% 9.89% 26 6.70% 3.36% 10.06% 27 6.81% 3.42% 10.23% 28 6.91% 3.48% 10.39% 29 7.03% 3.54% 10.57% 30 7.14% 3.60% 10.74% 31 7.25% 3.66% 10.91% 32 7.37% 3.72% 11.09% 33 7.49% 3.79% 11.28% 34 7.61% 3.85% 11.46% 35 7.73% 3.92% 11.65% 36 7.86% 3.99% 11.85% 37 7.99% 4.06% 12.05% 38 8.12% 4.13% 12.25% 39 8.25% 4.20% 12.45% 40 8.39% 4.28% 12.67% 41 8.53% 4.35% 12.88% 42 8.68% 4.43% 13.11% 43 8.82% 4.51% 13.33% 44 8.98% 4.59% 13.57% 45 9.13% 4.67% 13.80% 46 9.28% 4.76% 14.04% 47 9.44% 4.84% 14.28% 48 9.60% 4.93% 14.53% 49 9.74% 5.00% 14.74% 50 9.91% 5.10% 15.01% 51 10.07% 5.18% 15.25% 52 10.24% 5.27% 15.51% 53 10.40% 5.36% 15.76% 54 10.54% 5.44% 15.98% 55 10.62% 5.48% 16.10% 56 10.69% 5.52% 16.21% 57 10.66% 5.50% 16.16% 58 10.48% 5.40% 15.88% 59 9.92% 5.10% 15.02% 60 and over 9.92% 5.10% 15.02% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 53.98% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: For members in Social Security, the rate should only be applied to monthly compensation in excess of $116.67. The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit E Page 9 Exhibit F GENERAL Cost Group #4 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 5.38% 2.58% 7.96% 16 5.46% 2.62% 8.08% 17 5.55% 2.67% 8.22% 18 5.64% 2.72% 8.36% 19 5.73% 2.77% 8.50% 20 5.82% 2.81% 8.63% 21 5.92% 2.87% 8.79% 22 6.01% 2.91% 8.92% 23 6.11% 2.97% 9.08% 24 6.21% 3.02% 9.23% 25 6.31% 3.07% 9.38% 26 6.41% 3.12% 9.53% 27 6.51% 3.18% 9.69% 28 6.62% 3.23% 9.85% 29 6.72% 3.29% 10.01% 30 6.83% 3.34% 10.17% 31 6.94% 3.40% 10.34% 32 7.05% 3.46% 10.51% 33 7.17% 3.52% 10.69% 34 7.28% 3.58% 10.86% 35 7.40% 3.64% 11.04% 36 7.52% 3.71% 11.23% 37 7.64% 3.77% 11.41% 38 7.77% 3.84% 11.61% 39 7.90% 3.91% 11.81% 40 8.03% 3.98% 12.01% 41 8.16% 4.04% 12.20% 42 8.30% 4.12% 12.42% 43 8.45% 4.20% 12.65% 44 8.59% 4.27% 12.86% 45 8.75% 4.35% 13.10% 46 8.90% 4.43% 13.33% 47 9.05% 4.51% 13.56% 48 9.19% 4.58% 13.77% 49 9.35% 4.67% 14.02% 50 9.50% 4.75% 14.25% 51 9.67% 4.84% 14.51% 52 9.84% 4.93% 14.77% 53 9.99% 5.01% 15.00% 54 10.13% 5.08% 15.21% 55 10.25% 5.14% 15.39% 56 10.36% 5.20% 15.56% 57 10.34% 5.19% 15.53% 58 10.19% 5.11% 15.30% 59 9.79% 4.90% 14.69% 60 and over 9.79% 4.90% 14.69% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 52.58% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: For members in Social Security, the rate should only be applied to monthly compensation in excess of $116.67. The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit F Page 10 Exhibit G GENERAL Cost Group #5 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 5.40% 2.56% 7.96% 16 5.49% 2.60% 8.09% 17 5.58% 2.65% 8.23% 18 5.67% 2.70% 8.37% 19 5.76% 2.74% 8.50% 20 5.85% 2.79% 8.64% 21 5.94% 2.84% 8.78% 22 6.04% 2.89% 8.93% 23 6.14% 2.94% 9.08% 24 6.24% 2.99% 9.23% 25 6.34% 3.04% 9.38% 26 6.44% 3.10% 9.54% 27 6.54% 3.15% 9.69% 28 6.64% 3.20% 9.84% 29 6.75% 3.26% 10.01% 30 6.86% 3.31% 10.17% 31 6.97% 3.37% 10.34% 32 7.08% 3.43% 10.51% 33 7.20% 3.49% 10.69% 34 7.31% 3.55% 10.86% 35 7.43% 3.61% 11.04% 36 7.55% 3.67% 11.22% 37 7.68% 3.74% 11.42% 38 7.80% 3.80% 11.60% 39 7.93% 3.87% 11.80% 40 8.07% 3.94% 12.01% 41 8.20% 4.01% 12.21% 42 8.34% 4.08% 12.42% 43 8.49% 4.16% 12.65% 44 8.63% 4.23% 12.86% 45 8.78% 4.31% 13.09% 46 8.94% 4.39% 13.33% 47 9.09% 4.47% 13.56% 48 9.23% 4.54% 13.77% 49 9.38% 4.62% 14.00% 50 9.54% 4.70% 14.24% 51 9.72% 4.80% 14.52% 52 9.88% 4.88% 14.76% 53 10.03% 4.96% 14.99% 54 10.18% 5.04% 15.22% 55 10.28% 5.09% 15.37% 56 10.35% 5.12% 15.47% 57 10.32% 5.11% 15.43% 58 10.16% 5.03% 15.19% 59 10.04% 4.96% 15.00% 60 and over 10.04% 4.96% 15.00% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 51.87% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: For members in Social Security, the rate should only be applied to monthly compensation in excess of $116.67. The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit G Page 11 Exhibit H GENERAL Cost Group #6 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 6.13% 2.57% 8.70% 16 6.23% 2.62% 8.85% 17 6.33% 2.66% 8.99% 18 6.43% 2.71% 9.14% 19 6.54% 2.76% 9.30% 20 6.64% 2.80% 9.44% 21 6.75% 2.85% 9.60% 22 6.86% 2.90% 9.76% 23 6.97% 2.95% 9.92% 24 7.08% 3.00% 10.08% 25 7.20% 3.06% 10.26% 26 7.31% 3.11% 10.42% 27 7.43% 3.16% 10.59% 28 7.55% 3.22% 10.77% 29 7.67% 3.27% 10.94% 30 7.80% 3.33% 11.13% 31 7.93% 3.39% 11.32% 32 8.06% 3.45% 11.51% 33 8.19% 3.51% 11.70% 34 8.32% 3.56% 11.88% 35 8.46% 3.63% 12.09% 36 8.61% 3.70% 12.31% 37 8.75% 3.76% 12.51% 38 8.90% 3.83% 12.73% 39 9.06% 3.90% 12.96% 40 9.23% 3.98% 13.21% 41 9.38% 4.05% 13.43% 42 9.54% 4.12% 13.66% 43 9.69% 4.19% 13.88% 44 9.86% 4.26% 14.12% 45 10.02% 4.34% 14.36% 46 10.19% 4.41% 14.60% 47 10.38% 4.50% 14.88% 48 10.53% 4.57% 15.10% 49 10.69% 4.64% 15.33% 50 10.83% 4.70% 15.53% 51 10.90% 4.74% 15.64% 52 10.87% 4.72% 15.59% 53 10.71% 4.65% 15.36% 54 10.28% 4.45% 14.73% 55 10.28% 4.45% 14.73% 56 10.28% 4.45% 14.73% 57 10.28% 4.45% 14.73% 58 10.28% 4.45% 14.73% 59 10.28% 4.45% 14.73% 60 and over 10.28% 4.45% 14.73% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 45.41% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: For members in Social Security, the rate should only be applied to monthly compensation in excess of $116.67. The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit H Page12 Exhibit I SAFETY Cost Group #7 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 9.05% 6.33% 15.38% 16 9.05% 6.33% 15.38% 17 9.05% 6.33% 15.38% 18 9.05% 6.33% 15.38% 19 9.05% 6.33% 15.38% 20 9.05% 6.33% 15.38% 21 9.05% 6.33% 15.38% 22 9.19% 6.43% 15.62% 23 9.34% 6.54% 15.88% 24 9.50% 6.66% 16.16% 25 9.65% 6.77% 16.42% 26 9.81% 6.89% 16.70% 27 9.97% 7.01% 16.98% 28 10.14% 7.13% 17.27% 29 10.31% 7.26% 17.57% 30 10.48% 7.38% 17.86% 31 10.65% 7.51% 18.16% 32 10.84% 7.65% 18.49% 33 11.03% 7.79% 18.82% 34 11.22% 7.93% 19.15% 35 11.42% 8.08% 19.50% 36 11.62% 8.22% 19.84% 37 11.81% 8.36% 20.17% 38 12.01% 8.51% 20.52% 39 12.22% 8.67% 20.89% 40 12.44% 8.83% 21.27% 41 12.67% 9.00% 21.67% 42 12.90% 9.17% 22.07% 43 13.19% 9.38% 22.57% 44 13.42% 9.55% 22.97% 45 13.62% 9.70% 23.32% 46 13.66% 9.73% 23.39% 47 13.60% 9.68% 23.28% 48 13.39% 9.53% 22.92% 49 13.01% 9.25% 22.26% 50 13.01% 9.25% 22.26% 51 13.01% 9.25% 22.26% 52 13.01% 9.25% 22.26% 53 13.01% 9.25% 22.26% 54 13.01% 9.25% 22.26% 55 13.01% 9.25% 22.26% 56 13.01% 9.25% 22.26% 57 13.01% 9.25% 22.26% 58 13.01% 9.25% 22.26% 59 13.01% 9.25% 22.26% 60 and over 13.01% 9.25% 22.26% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 73.76% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit I Page 13 Exhibit J SAFETY Cost Group #8 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 9.03% 6.31% 15.34% 16 9.03% 6.31% 15.34% 17 9.03% 6.31% 15.34% 18 9.03% 6.31% 15.34% 19 9.03% 6.31% 15.34% 20 9.03% 6.31% 15.34% 21 9.03% 6.31% 15.34% 22 9.17% 6.41% 15.58% 23 9.32% 6.53% 15.85% 24 9.48% 6.64% 16.12% 25 9.63% 6.75% 16.38% 26 9.79% 6.87% 16.66% 27 9.95% 6.99% 16.94% 28 10.12% 7.11% 17.23% 29 10.28% 7.23% 17.51% 30 10.46% 7.37% 17.83% 31 10.64% 7.50% 18.14% 32 10.82% 7.63% 18.45% 33 11.00% 7.76% 18.76% 34 11.20% 7.91% 19.11% 35 11.39% 8.05% 19.44% 36 11.59% 8.20% 19.79% 37 11.79% 8.35% 20.14% 38 11.99% 8.49% 20.48% 39 12.20% 8.65% 20.85% 40 12.41% 8.80% 21.21% 41 12.63% 8.97% 21.60% 42 12.88% 9.15% 22.03% 43 13.16% 9.36% 22.52% 44 13.42% 9.55% 22.97% 45 13.58% 9.67% 23.25% 46 13.61% 9.69% 23.30% 47 13.52% 9.62% 23.14% 48 13.41% 9.54% 22.95% 49 13.04% 9.27% 22.31% 50 13.04% 9.27% 22.31% 51 13.04% 9.27% 22.31% 52 13.04% 9.27% 22.31% 53 13.04% 9.27% 22.31% 54 13.04% 9.27% 22.31% 55 13.04% 9.27% 22.31% 56 13.04% 9.27% 22.31% 57 13.04% 9.27% 22.31% 58 13.04% 9.27% 22.31% 59 13.04% 9.27% 22.31% 60 and over 13.04% 9.27% 22.31% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 73.73% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit J Page 14 Exhibit K SAFETY Cost Group #9 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 8.64% 3.88% 12.52% 16 8.64% 3.88% 12.52% 17 8.64% 3.88% 12.52% 18 8.64% 3.88% 12.52% 19 8.64% 3.88% 12.52% 20 8.64% 3.88% 12.52% 21 8.64% 3.88% 12.52% 22 8.78% 3.95% 12.73% 23 8.92% 4.02% 12.94% 24 9.07% 4.09% 13.16% 25 9.22% 4.16% 13.38% 26 9.37% 4.23% 13.60% 27 9.52% 4.30% 13.82% 28 9.68% 4.38% 14.06% 29 9.84% 4.45% 14.29% 30 10.01% 4.53% 14.54% 31 10.18% 4.61% 14.79% 32 10.35% 4.69% 15.04% 33 10.53% 4.78% 15.31% 34 10.71% 4.87% 15.58% 35 10.89% 4.95% 15.84% 36 11.07% 5.04% 16.11% 37 11.25% 5.12% 16.37% 38 11.45% 5.22% 16.67% 39 11.64% 5.31% 16.95% 40 11.83% 5.40% 17.23% 41 12.05% 5.50% 17.55% 42 12.27% 5.61% 17.88% 43 12.45% 5.69% 18.14% 44 12.53% 5.73% 18.26% 45 12.51% 5.72% 18.23% 46 12.43% 5.68% 18.11% 47 12.17% 5.56% 17.73% 48 12.55% 5.74% 18.29% 49 13.14% 6.02% 19.16% 50 13.14% 6.02% 19.16% 51 13.14% 6.02% 19.16% 52 13.14% 6.02% 19.16% 53 13.14% 6.02% 19.16% 54 13.14% 6.02% 19.16% 55 13.14% 6.02% 19.16% 56 13.14% 6.02% 19.16% 57 13.14% 6.02% 19.16% 58 13.14% 6.02% 19.16% 59 13.14% 6.02% 19.16% 60 and over 13.14% 6.02% 19.16% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 47.52% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit K Page 15 Exhibit L SAFETY Cost Group #10 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 9.05% 6.25% 15.30% 16 9.05% 6.25% 15.30% 17 9.05% 6.25% 15.30% 18 9.05% 6.25% 15.30% 19 9.05% 6.25% 15.30% 20 9.05% 6.25% 15.30% 21 9.05% 6.25% 15.30% 22 9.19% 6.36% 15.55% 23 9.34% 6.47% 15.81% 24 9.50% 6.58% 16.08% 25 9.65% 6.69% 16.34% 26 9.81% 6.81% 16.62% 27 9.97% 6.92% 16.89% 28 10.14% 7.05% 17.19% 29 10.31% 7.17% 17.48% 30 10.48% 7.30% 17.78% 31 10.65% 7.42% 18.07% 32 10.84% 7.56% 18.40% 33 11.03% 7.70% 18.73% 34 11.22% 7.84% 19.06% 35 11.42% 7.98% 19.40% 36 11.62% 8.13% 19.75% 37 11.81% 8.27% 20.08% 38 12.01% 8.41% 20.42% 39 12.22% 8.56% 20.78% 40 12.44% 8.72% 21.16% 41 12.67% 8.89% 21.56% 42 12.90% 9.06% 21.96% 43 13.19% 9.27% 22.46% 44 13.42% 9.44% 22.86% 45 13.62% 9.59% 23.21% 46 13.66% 9.61% 23.27% 47 13.60% 9.57% 23.17% 48 13.39% 9.42% 22.81% 49 13.01% 9.14% 22.15% 50 13.01% 9.14% 22.15% 51 13.01% 9.14% 22.15% 52 13.01% 9.14% 22.15% 53 13.01% 9.14% 22.15% 54 13.01% 9.14% 22.15% 55 13.01% 9.14% 22.15% 56 13.01% 9.14% 22.15% 57 13.01% 9.14% 22.15% 58 13.01% 9.14% 22.15% 59 13.01% 9.14% 22.15% 60 and over 13.01% 9.14% 22.15% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 72.89% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit L Page 16 Exhibit M SAFETY Cost Group #11 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 9.17% 6.45% 15.62% 16 9.17% 6.45% 15.62% 17 9.17% 6.45% 15.62% 18 9.17% 6.45% 15.62% 19 9.17% 6.45% 15.62% 20 9.17% 6.45% 15.62% 21 9.17% 6.45% 15.62% 22 9.32% 6.56% 15.88% 23 9.47% 6.67% 16.14% 24 9.63% 6.79% 16.42% 25 9.78% 6.90% 16.68% 26 9.94% 7.02% 16.96% 27 10.11% 7.15% 17.26% 28 10.28% 7.27% 17.55% 29 10.45% 7.40% 17.85% 30 10.62% 7.53% 18.15% 31 10.80% 7.66% 18.46% 32 10.99% 7.80% 18.79% 33 11.17% 7.93% 19.10% 34 11.37% 8.08% 19.45% 35 11.57% 8.23% 19.80% 36 11.77% 8.38% 20.15% 37 11.97% 8.53% 20.50% 38 12.17% 8.68% 20.85% 39 12.38% 8.83% 21.21% 40 12.59% 8.99% 21.58% 41 12.83% 9.16% 21.99% 42 13.07% 9.34% 22.41% 43 13.34% 9.54% 22.88% 44 13.60% 9.74% 23.34% 45 13.76% 9.85% 23.61% 46 13.80% 9.88% 23.68% 47 13.71% 9.82% 23.53% 48 13.44% 9.62% 23.06% 49 12.83% 9.16% 21.99% 50 12.83% 9.16% 21.99% 51 12.83% 9.16% 21.99% 52 12.83% 9.16% 21.99% 53 12.83% 9.16% 21.99% 54 12.83% 9.16% 21.99% 55 12.83% 9.16% 21.99% 56 12.83% 9.16% 21.99% 57 12.83% 9.16% 21.99% 58 12.83% 9.16% 21.99% 59 12.83% 9.16% 21.99% 60 and over 12.83% 9.16% 21.99% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 74.15% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit M Page 17 Exhibit N SAFETY Cost Group #12 Non-PEPRA Member Contribution Rates Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* Entry Age Basic COLA Total 15 9.17% 5.07% 14.24% 16 9.17% 5.07% 14.24% 17 9.17% 5.07% 14.24% 18 9.17% 5.07% 14.24% 19 9.17% 5.07% 14.24% 20 9.17% 5.07% 14.24% 21 9.17% 5.07% 14.24% 22 9.32% 5.16% 14.48% 23 9.47% 5.24% 14.71% 24 9.63% 5.34% 14.97% 25 9.78% 5.42% 15.20% 26 9.94% 5.52% 15.46% 27 10.11% 5.62% 15.73% 28 10.28% 5.72% 16.00% 29 10.45% 5.82% 16.27% 30 10.62% 5.91% 16.53% 31 10.80% 6.02% 16.82% 32 10.99% 6.13% 17.12% 33 11.17% 6.23% 17.40% 34 11.37% 6.35% 17.72% 35 11.57% 6.47% 18.04% 36 11.77% 6.58% 18.35% 37 11.97% 6.70% 18.67% 38 12.17% 6.82% 18.99% 39 12.38% 6.94% 19.32% 40 12.59% 7.06% 19.65% 41 12.83% 7.20% 20.03% 42 13.07% 7.34% 20.41% 43 13.34% 7.50% 20.84% 44 13.60% 7.65% 21.25% 45 13.76% 7.74% 21.50% 46 13.80% 7.77% 21.57% 47 13.71% 7.71% 21.42% 48 13.44% 7.56% 21.00% 49 12.83% 7.20% 20.03% 50 12.83% 7.20% 20.03% 51 12.83% 7.20% 20.03% 52 12.83% 7.20% 20.03% 53 12.83% 7.20% 20.03% 54 12.83% 7.20% 20.03% 55 12.83% 7.20% 20.03% 56 12.83% 7.20% 20.03% 57 12.83% 7.20% 20.03% 58 12.83% 7.20% 20.03% 59 12.83% 7.20% 20.03% 60 and over 12.83% 7.20% 20.03% Adminstrative Expense: 0.47% of payroll added to Basic rates. COLA Loading: 58.27% applied to Basic rates prior to adjustment for administrative expenses. *NOTE: The rate should be applied to all compensation up to the annual IRC 401(a)(17) compensation limit. Membership Date before January 1, 2013 Member Rates 7-1-17 Exhibit N Page 18 Exhibit O PEPRA Tiers Member Contribution Rates Membership Date on or after January 1, 2013 Effective 7/1/17 - 6/30/18 Expressed as a Percentage of Monthly Payroll* General Tiers Basic COLA Total Cost Group #1 – PEPRA Tier 4 (2% COLA) 8.84% 2.02% 10.86% Cost Group #1 – PEPRA Tier 4 (3% COLA) 9.14% 3.07% 12.21% Cost Group #2 - PEPRA Tier 5 (2% COLA) 8.11% 1.85% 9.96% Cost Group #2 - PEPRA Tier 5 (3%/4% COLA) 8.28% 2.77% 11.05% Cost Group #3 - PEPRA Tier 4 (3% COLA) 8.71% 2.99% 11.70% Cost Group #4 - PEPRA Tier 4 (3% COLA) 8.82% 3.00% 11.82% Cost Group #5 - PEPRA Tier 4 (2% COLA) 9.54% 2.21% 11.75% Cost Group #5 - PEPRA Tier 4 (3% COLA) 10.97% 3.78% 14.75% Cost Group #6 - PEPRA Tier 4 (3% COLA) 9.46% 3.30% 12.76% Safety Tiers Basic COLA Total Cost Group #7 - PEPRA Tier D 15.61% 6.34% 21.95% Cost Group #8 - PEPRA Tier D 14.57% 6.10% 20.67% Cost Group #8 - PEPRA Tier E 16.17% 4.40% 20.57% Cost Group #9 - PEPRA Tier E 13.37% 3.71% 17.08% Cost Group #10 - PEPRA Tier D 13.53% 5.71% 19.24% Cost Group #11 - PEPRA Tier D 13.70% 5.79% 19.49% Cost Group #12 - PEPRA Tier D 11.96% 5.10% 17.06% The Basic rates shown above also include an administrative expense load of 0.47% of payroll. *NOTE: The rate should be applied to all compensation (whether or not in Social Security) up to the applicable annual Gov. Code 7522.10(d) compensation limit. Member Rates 7-1-17 Exhibit O Page 19 Page 20 CONTRA COSTA COUNTY EMPLOYEES’ RETIREMENT ASSOCIATION SUBVENTION All rates are shown as a percent of payroll. Employee contribution rates vary depending upon their tier and age at entry. To compute the exact subvention percent for each employee, do the following: Employee rate – Decrease the employee’s rate by the subvention percent (i.e. 25%, 50%, etc.). Employer rate – Increase the employer’s rate by a percent of the employee’s decrease using the applicable refundability factor (found on Exhibits A and B): EXAMPLE FOR COST GROUP #3 LEGACY MEMBERS: If the subvention percent is 25%, and the employee’s rate is 6.00%, Employee rates should be decreased by 1.50% (25% × 6.00%) The employer rate should be increased by 1.4370% (1.50% × 0.9580) Please note that for PEPRA members, subvention is generally not permitted. The standard under Gov. Code §7522.30(a) is that employees pay at least 50 percent of normal costs and that employers not pay any of the required employee contribution, but there are some exceptions. Gov. Code §7522.30(f) allows the terms (regarding the employee’s required contribution) of a contract, including a memorandum of understanding, that is in effect on January 1, 2013, to continue through the length of a contract. This means that it is possible that an employer will subvent a portion of a PEPRA member’s required contribution until the expiration date of the current contract, so long as it has been determined that the contract has been impaired. CAUTION – these rates are for employer subvention of up to one-half the member contribution under Gov. Code §31581.1, NOT employer pick-up of employee contribution rates. When an employer subvents, the contribution subvented is not placed in the member’s account and is therefore not available to the member as a refund. For this reason, the employer pays the contribution at a discount (i.e. “Refundability Factor”). Employer pick-ups of employee contributions are those made under Gov. Code §31581.2 and Internal Revenue Code §414 (h)(2) for the sole purpose of deferring income tax. These contributions are added to the member’s account, are available to the member as a refund and are considered by CCCERA as part of the member’s compensation for retirement purposes. EMPLOYEE PAYMENT OF EMPLOYER COST There are several reasons why the attached contribution rates may need to be adjusted to increase the employee portion including the following: Gov. Code §31631 allows for members to pay all or part of the employer contributions. Gov. Code §31639.95 allows for Safety members to pay a portion of the employer cost for the “3% at 50” enhanced benefit. Gov. Code §7522.30(c) requires that an employee’s contribution rate be at least equal to that of similarly situated employees. Page 21 Gov. Code §7522.30(e) allows the employee contributions to be more than one-half of the normal cost rate if the increase has been agreed to through the collective bargaining process. If you need to increase the employee contribution rate for any reason, you will need to adjust both employee and employer rates as follows: Employee rate – Increase the employee’s rate by the desired percent of payroll. Employer rate – Decrease the employer’s rate by a percent of the cost-sharing percent of payroll using the applicable refundability factor: EXAMPLE FOR COST GROUP #11 LEGACY MEMBERS: If the required increase in the employee rate is 8.0%, Employee rates should be increased by 8.0%. The employer rate should be decreased by 7.741% (8.0% × 0.9676) PREPAYMENT DISCOUNT FACTOR FOR 2017-18 Employer Contribution Prepayment Program & Discount Factor for 2017-18 is 0.9696 If you are currently participating in the prepayment program and wish to continue, you do not need to do anything other than prepay the July 1, 2017 through June 30, 2018 contributions on or before July 31, 2017. If you wish to start participating, please contact the Accounting Division at the Retirement Office by March 31, 2017. The discount factor is calculated assuming the prepayment will be received on July 31 in accordance with Gov. Code §31582(b) in lieu of 12 equal payments due at the end of each month in accordance with Gov. Code §31582(a). The discount factor for the fiscal year July 1, 2017 through June 30, 2018 will be 0.9696 based on the interest assumption of 7.00% per annum. RECOMMENDATION(S): RECEIVE 2016 Annual Report submitted by the Aviation Advisory Committee. FISCAL IMPACT: Not Applicable BACKGROUND: On June 18, 2002, the Board of Supervisors adopted Resolution No. 2002/377, which requires that each regular and ongoing board, commission, or committee shall annually report to the Board of Supervisors on its activities, accomplishments, membership attendance, required training/certification (if any), and proposed work plan or objectives for the following year, on the second Tuesday in December. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Lee, (925) 681-4200 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.114 To:Board of Supervisors From:Keith Freitas, Airports Director Date:December 6, 2016 Contra Costa County Subject:2016 REPORT FROM AVIATION ADVISORY BODY BACKGROUND: (CONT'D) The attached report fulfills this requirement for the Aviation Advisory Committee. CONSEQUENCE OF NEGATIVE ACTION: Not Applicable ATTACHMENTS AAC 2016 Annual Report 1 Contra Costa County Aviation Advisory Committee 2016 Annual Report to Board of Supervisors Advisory Board Meeting Time/Location: 10:00 AM on the 2nd Thursday of every month at either Buchanan Field or Byron Airport. Advisory Body Chair: Ronald Reagan Airport Staff: Keith Freitas/Beth Lee Activities  Monthly review of noise statistics, operations report and airport development projects.  Discussions of airport projects and programs to disseminate information and solicit input from members and public.  Discussions of issues facing the airports and airport community.  Input to the Airport Director, Airport Committee and Board of Supervisors on issues affecting the County’s airports and surrounding communities.  Participation in community outreach efforts.  Quarterly review of the airports year to date and end of year forecast financial reports.  Annual review of input on the Part 150 Noise Mitigation recommendations. Accomplishments Discussed and advised on the following:  Airport administration activities to enhance airport economic development including:  Updating Byron General Plan Amendment to bring conformity between the adopted Master Plan and County General Plan relative to allowable uses at the Airport  County acceptance of a donated 120 acre parcel adjacent to Byron airport to serve as a wildlife preserve,  Development of a 3 acre industrial business park on Buchanan Field,  Parcel C development and tax share resolution between Contra Costa County and the City of Concord,  Approval of a 3 year CPI rate increase freeze for airport aviation businesses and hangar tenants to retain and attract customers,  Seeking greater stakeholder and community input regarding EDIP and strategic planning process,  Exploration of MOGAS fuel service at Buchanan Field ,  Planning and establishment of JetSuite X airline scheduled jet charter service from Buchanan Field, and  Development of an airport promotion video highlighting airport activities and services  Developing Byron airport including projects to connect Armstrong and Vasco road, and upgrade airport utilities infrastructure. 2 Accomplishments (continued) Discussed and advised on the following:  Aviation Land Use Committee (ALUC) activities including:  Concord area construction projects and their impact on air navigation,  Lifting land use restrictions impeding the appraisal of a 80 acre parcel for sale near Buchanan Field,  Reassignment of the County cost to review airport land use applications from Airport Enterprise Fund to applicants, and  Efforts to encourage FAA to hold public hearings on the erection of wind turbines near Byron airport  Buchanan Field and Byron airport construction projects including:  Completion of the Buchanan Field east ramp repaving project,  Planning and initiation of the Buchanan Fie ld taxiway Echo and Kilo reconstruction project,  Completion of the Byron airport runways repaving, restriping and signage replacement projects, and  Enhancements to perimeter security  Airport hangar management activities and concerns including:  Termination of the TDMC hangar lease and transfer to airport control relative to financial impact and use proposals,  Amendment of 1500 Sally Ride hangar lease to enable lease transfer to current tenant,  Termination of OverWatch Flight & Conditioning hangar license agreement (offered tenant ability to stay at going market rate for non-aviation use),  Use of hangars for purposes other than aircraft storage and impact on hangar waiting list, and  Hangar inspection process and cycle  Airport noise community impact including:  Review of the Airport Noise Program effectiveness and enhancement recommendations,  Recommendation to reissue Aerobatic Activities Noise Letter to airports near Brentwood in response to noise complaints, and  Addressing rising Buchanan Field noise complaints Completed or performed the following:  Amended the AAC bylaws to convert the DVC appointed AAC member seat to a third AAC Member At Large position.  Through the Tenant Recognition Program awarded recognition to CalStar / Reach tenants for their valuable emergency services provided to the Bay Area from Buchanan Field.  Encouraged additional airport administration, AAC member and Board of Supervisors representative engagement with the airport aviation community. 3 Attendance/Representation  AAC is composed of members representing each of the supervisorial districts, the cities of Concord and Pleasant Hill, the Airport Business Association and 3 at-large positions for a total of 11.  Quorums are achieved at all meetings with good participation from membe rs.  The AAC is a diverse group of aviation professionals, retired executives, consultants and educators. There is a balanced mix of pilots and non-pilots.  Several committee members are also involved in other county and city advisory bodies, committees and commissions.  Current AAC member roster is as follows: AAC Members Representing 2016 Appointment Status Term Expiration Date Rudi Raab District 1 3/1/2017 Mike Bruno Airport Business Assoc Reappointed 3/1/2019 DeWitt Hodge Member at Large (Recruiting) 3/1/2017 Ronald Reagan District 3 3/1/2018 Derek Mims City of Pleasant Hill 3/1/2018 Russell Roe District 5 3/1/2017 Keith McMahon City of Concord Reappointed 3/1/2019 Roger Bass District 2 3/1/2018 Maurice Gunderson Member at Large 3/1/2018 Tom Weber District 4 3/1/2017 Member at Large (Recruiting)  Current AAC Officers: AAC Member Position Election Status Ronald Reagan Chair Reelected Mike Bruno Vice Chair Reelected DeWitt Hodge Secretary Reelected Training/Certification  Committee members requested to review and comply with Brown Act. Proposed Objectives for 2017  Continue to review and advise on the Byron Airport General Plan Amendment including encouraging expedited completion of the commissioned study and other efforts to improve infrastructure and road access.  Continue to review and advise on the Economic Development Incentive Program (EDIP) including promoting progress on EDIP associated projects.  Monitor and advise on Buchanan Field & Byron Airport construction and maintenance projects.  Continue to monitor, review and advise on activities and incidents impacting airport security. 4 Proposed Objectives for 2017 (continued)  Continue to pursue community and tenant outreach efforts at both airports.  Continue to review and advise on airport budget, noise statistics and overall operations.  Continue to work with community members relative to noise concerns or problems.  Continue regular discussions with Airport Staff on airport development, projects and issues, as well as disseminate information, and offer recommendations and comment.  Continue to provide the public an open forum for discussing airport matters. Acknowledgements AAC members Maurice Gunderson and Tom Weber In response to the frustration expressed by a concerned citizen, regarding Buchanan Field noise, AAC members Maurice Gunderson and Tom Weber took measures that far exceeded their duties. Mr. Gunderson and Mr. Weber with Airport staff met with the citizen to discuss their issues and educate them regarding airport administration actions taken to monitor, and minimize noise impact to surrounding communities due to airport flight operations. Efforts included taking the citizen on an airplane ride to provide a better understanding of traffic pattern layout, control t ower involvement and noise restrictions placed on pilots departing, approaching and flying at Buchanan Field. RECOMMENDATION(S): APPROVE and AUTHORIZE the Sheriff-Coroner, or designee, to execute a contract with Sheriff's Deputy Jeffery Rodier to pay the County $1.00 for retired Sheriff's Service Dog "Gizmo" on January 21, 2017. FISCAL IMPACT: $1.00, 100% Revenue. BACKGROUND: On December 18, 2007, the Board of Supervisors approved Board Resolution No. 2007/172, which authorized the transfer of ownership of retired police canine (K-9) service dogs to their respective handlers for minimal ($1.00) consideration. Police dogs typically reach the end of their useful service lives around the age of 8 years. Although the approximate costs of purchasing a police dog ($7,500) and training it ($10,200) are substantial, the service received from these dogs is well worth the expenditure. However, upon their retirement from service, the dogs cease being a financial asset and instead become a continuous expense. By transferring ownership of the dog to its handler, all ongoing expenses are absorbed by the handler in exchange for his/her dog's companionship in the sunset years of the dog's life. On rare occasions, the K-9 handler is unable to APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Sandra Brown 925-335-1553 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.115 To:Board of Supervisors From:David O. Livingston, Sheriff-Coroner Date:December 6, 2016 Contra Costa County Subject:Transfer of K-9 Service Dog Gizmo BACKGROUND: (CONT'D) accept ownership of his/her retired service dog. In these situations the Sheriff's Office seeks authorization to transfer ownership of retired K-9s to private citizens whom the Office of the Sheriff has determined to be suitable to accept the dog. In exchange for a minimal ($1.00) consideration for the transfer of ownership, the new owner will assume all costs - food, shelter, veterinary, licensing, and liability for the dog. CONSEQUENCE OF NEGATIVE ACTION: The contract will not be executed resulting in the County retaining ownership of "Gizmo". CHILDREN'S IMPACT STATEMENT: No impact. RECOMMENDATION(S): APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to issue Request for Proposal (RFP) #1150 in an amount not to exceed $1,100,000, for youth development services to eligible in-school and out-of-school youth, for the period of July 1, 2017 through June 30, 2018 (100% Federal-Workforce Innovation and Opportunity Act) FISCAL IMPACT: $1,100,000: 100% Federal-Workforce Innovation and Opportunity Act (CFDA# 17.259) BACKGROUND: The Request for Proposal will solicit competitive proposals for the delivery of year-round youth development services under the Workforce Innovation and Opportunity Act (WIOA), Title I-B, in Contra Costa County. WIOA programs are intended to provide a rich array of age-appropriate services to target economically disadvantaged youth ages 14-21 who face barriers to remaining in school or finding stable employment. Successful bidders will provide youth workforce development services, including the WIOA youth programs in a customer-focused, youth system approach designed to enhance participants' essential employability skills and assist youth in setting and pursuing educational and career goals. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Gina Chenoweth 925-313-1648 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.116 To:Board of Supervisors From:Kathy Gallagher, Employment & Human Services Director Date:December 6, 2016 Contra Costa County Subject:Issuance of Request for Proposal (RFP) #1150, Youth Development Services CONSEQUENCE OF NEGATIVE ACTION: Without timely release of the Request for Proposal (RFP), the Department would be out of compliance with County policies. CHILDREN'S IMPACT STATEMENT: Contracts resulting from the RFP will support two of Contra Costa County’s community outcomes established in the Children's Report Card: (2) "Children and Youth Healthy and Preparing for Productive Adulthood"; (3) "Families that are Economically Self-Sufficient"; by providing in-school and out-of-school youth development services to teach and encourage self-sufficiency skills. RECOMMENDATION(S): REFER to the Internal Operations Committee development of an ordinance to authorize administrative penalties for barking dogs and other noisy animals, and to limit the number of roosters on private property in the county unincorporated areas. FISCAL IMPACT: To be determined BACKGROUND: After receiving Community feedback by Contra Costa County residents, the Animal Services Department found that the current Dog Barking ordinance was insufficient and needed to be strengthened. The Animal Services Department also found that the County lacks a Rooster ordinance governing the number of Roosters a resident could own. After researching ordinances around the Bay Area and the State, we found that Orange and Solano Counties' noise ordinances had the best practices to serve their community needs around noisy animals. APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 12/06/2016 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS Contact: Beth Ward 925-335-8370 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: December 6, 2016 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: , Deputy cc: C.117 To:Board of Supervisors From:Beth Ward, Animal Services Director Date:December 6, 2016 Contra Costa County Subject:Administrative Penalties, Animal Noise, and Roosters