HomeMy WebLinkAboutMINUTES - 10162018 -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
FEDERAL D. GLOVER, CHAIR, 5TH DISTRICT
KAREN MITCHOFF, VICE CHAIR, 4TH DISTRICT
JOHN GIOIA, 1ST DISTRICT
CANDACE ANDERSEN, 2ND DISTRICT
DIANE BURGIS, 3RD 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, MAY BE LIMITED TO
TWO (2) MINUTES.
A LUNCH BREAK MAY BE CALLED AT THE DISCRETION OF THE BOARD CHAIR.
The Board of Supervisors respects your time, and every attempt is made to accurately estimate when an item may be heard by the Board. All times specified for items on the Board of
Supervisors agenda are approximate. Items may be heard later than indicated depending on the business of the day. Your patience is appreciated.
ANNOTATED AGENDA & MINUTES
October 16, 2018
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 Richard Bolanos.
Employee Organizations: Public Employees Union, Local 1; AFSCME Locals 512 and 2700; California Nurses Assn.; SEIU Locals
1021 and 2015; District Attorney Investigators’ Assn.; Deputy Sheriffs Assn.; United Prof. Firefighters I.A.F.F., Local 1230;
Physicians’ & Dentists’ Org. of Contra Costa; Western Council of Engineers; United Chief Officers Assn.; Contra Costa County
Defenders Assn.; Contra Costa County Deputy District Attorneys’ Assn.; Prof. & Tech. Engineers IFPTE, Local 21; and 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))
James Laird v. Contra Costa County, United States District Court Case No. 18-cv-4091
9:30 A.M. Call to order and opening ceremonies.
Inspirational Thought- "The trees are about to show us how lovely it is to let things go." ~Anonymous
Present: John Gioia, District I Supervisor; Candace Andersen, District II Supervisor; Diane Burgis, District III Supervisor; Karen Mitchoff,
District IV Supervisor; Federal D. Glover, District V Supervisor
Staff Present:David Twa, County Administrator
CONSIDER CONSENT ITEMS (Items listed as C.1 through C.54 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)
PRESENTATION recognizing Diaper Need Awareness month. (Supervisor Mitchoff)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
DISCUSSION ITEMS
October 16, 2018 BOS Minutes 1
DISCUSSION ITEMS
D. 1 CONSIDER Consent Items previously removed.
There were no items removed for discussion.
D. 2 PUBLIC COMMENT (2 Minutes/Speaker)
Scott Rafferty, resident of Walnut Creek, spoke on election administration efforts past and present to protect and
encourage voting an encourage the Registrar to make available the list of poll workers;
Aron DeFerrari, CCC District Attorneys' Association, urged the Board to agree to the proposed one-year agreement for a
2019 fix for healthcare costs;
Jonathan Katayanagi, resident of Martinez, spoke on his request for speed control on Arthur Road in Martinez, citing
numerous incidents of speeding, erratic driving and a recent critical injury accident;
Ublanca Adams, resident of Bay Point, requested the Board's assistance on substandard conditions in Section 8 housing
in Bay Point;
Stacie Hinton, Vice President, Local 2700, 9 Union Healthcare Coalition, spoke on continuing negotiations for
healthcare pricing for county employees;
Sean Stalbaum, 9 Union Healthcare Coalition, spoke on expired contracts with the Deputy District Attorneys and Public
Defenders, who support the short-term solution to the 2019 healthcare costs, and look forward to a more permanent
solution;
Larry Handel, AFSCME 512 and CCC Central Labor Coalition, spoke on a long-term healthcare fix, and support for the
Deputy District Attorneys and Public Defenders whose contract has expired.
D.3 HEARING to consider adoption of Resolution No. 2018/524, establishing new hangar and tie-down rental rates and new
rates for maintenance and other services at Buchanan Field Airport and Byron Airport. (Keith Freitas, Airports Director)
Speakers: Tome Weber, CCC Aviation Advisory Committee; Eric Meinbress, CCC Aviation Advisory Committee.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
D. 4 CONSIDER reports of Board members.
There were no items reported today.
Closed Session
There were no reports from Closed Session.
ADJOURN
Adjourned today's meeting at 11:55 a.m.
CONSENT ITEMS
Road and Transportation
C. 1 APPROVE plans for the San Pablo Dam Road Landslide and Bench Repair Project, as recommended by the Public Works
Director, El Sobrante area. (100% Local Road Funds)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 2 APPROVE the Alhambra Valley Road and Bear Creek Road Intersection Safety and Sideshow Deterrence Project and take
related actions under the California Environmental Quality Act, Martinez area. (100% Local Road Funds)
October 16, 2018 BOS Minutes 2
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Engineering Services
C. 3 ADOPT Resolution No. 2018/491 approving the second extension of the Subdivision Agreement for minor subdivision
MS14-00004, for a project being developed by Cynthia Erb & Associates, LLC, as recommended by the Public Works Director,
Alamo area. (No fiscal impact)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 4 ADOPT Resolution No. 2018/516 proclaiming the week of October 20-26, 2018 as “California Flood Preparedness Week”
in Contra Costa County, as recommended by the Public Works Director, Countywide. (No fiscal impact)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Claims, Collections & Litigation
C. 5 DENY claims filed by Anja Brey, Geny Marie Maria Dominguez, Chris Flucus, Clarita Gatchalian, Roselyn May, Sergio
and Rosa Moreno, and Sean Moton. DENY amended claim filed by CSE for Darlene Drapkin.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Statutory Actions
C. 6 ACCEPT Board members meeting reports for September 2018.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Honors & Proclamations
C. 7 ADOPT Resolution No. 2018/527 recognizing Assistant Chief James Libby's retirement from the California Highway
Patrol as recommended by Supervisor Mitchoff.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 8 ADOPT Resolution No. 2018/528 recognizing October 2018 as Diaper Need Awareness Month, as recommended by
Supervisor Mitchoff.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 9 ADOPT Resolution No. 2018/525 proclaiming October 21 - 27, 2018 as "Lead Poisoning Prevention Week" in Contra
Costa County, as recommended by the Health Services Director.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Appointments & Resignations
C. 10 ACCEPT resignation of Victor Lecha for the District IV-A Seat on the Alcohol and Other Drugs Advisory Board, as
recommended by Supervisor Mitchoff.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
October 16, 2018 BOS Minutes 3
C. 11 ACCEPT resignation of Andrea Bailey, DECLARE a vacancy of the Business Seat 1 on the North Richmond Municipal
Advisory Council, as recommended by Supervisor Gioia.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 12 APPOINT individuals to seats on the Emergency Medical Care Committee, as recommended by the Health Services
Director.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 13 APPOINT Roosevelt Gipson, Jr. to the Education seat and Dr. Aaron Bryant to the Community #3 seat as recommended
by the Advisory Council on Equal Employment Opportunity and the Hiring Outreach Oversight Committee.
Corrected to read, Dr. Bryant was appointed to Community Seat 4
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 14 ADOPT Resolution No. 2018/518 to reappoint Supervisor John Gioia as the Board of Supervisors representative and
Supervisor Karen Mitchoff as the Board's alternate representative on the California State Association of Counties Board of
Directors to new terms beginning on November 26, 2018 and ending on November 30, 2019, as recommended by Supervisor
Mitchoff. (No fiscal impact)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 15 REAPPOINT Rhonda Gehlke to the At Large #1 seat and Kathleen Jennings to the At Large #2 seat to new terms ending
on December 31, 2022, and APPOINT Nicole Kozicki to the At Large Alternate seat to complete the unexpired term ending on
December 31, 2020, on the Fish and Wildlife Committee, as recommended by the Internal Operations Committee.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Appropriation Adjustments
C. 16 Plant Acquisition (0111)/Sheriff Detention (0300): APPROVE Appropriation Adjustment No. 5013 authorizing the
transfer of appropriations in the amount of $106,000 from Plant Acquisition-Sheriff Coroner (0111) to Sheriff Detention
(0300) for the purchase and installation of flooring for the Martinez Detention Facility. (100% General Fund)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Personnel Actions
C. 17 ADOPT Position Adjustment Resolution No. 22356 to transition two Mental Health Specialist-Project positions
(represented) and incumbents into the Merit System. (No additional fiscal impact)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 18 ADOPT Position Adjustment Resolution No. 22363 to add one Mental Health Program Chief (represented) in the Health
Services Department. (100% Mental Health Services Act)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 19 ADOPT Position Adjustment Resolution No. 22364 to add one Community Health Worker I position (represented) in the
Health Services Department. (100% Driving Under the Influence fees)
.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
October 16, 2018 BOS Minutes 4
C. 20 ADOPT Position Adjustment Resolution No. 22365 to add one Community Health Worker I position (represented) in the
Health Services Department. (100% Substance Abuse Block Grant)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 21 ADOPT Position Adjustment Resolution No. 22363 to add one Community Health Worker II position (represented) in the
Health Services Department.& (100% Substance Abuse and Mental Health Services for CalWORKs participants)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 22 ADOPT Position Adjustment Resolution No. 22367 to add one Account Clerk Supervisor (represented) position in the
Health Services Department. (100% Third Party revenues)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 23 ADOPT Position Adjustment Resolution No. 22368 to add two Departmental Human Resources Analyst I positions
(unrepresented) in the Health Services Department. (100% miscellaneous department-wide offset per indirect expense claims)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 24 ADOPT Position Adjustment Resolution No. 22369 to increase the hours of five Licensed Vocational Nurse positions
(represented), equivalent to 64 hours, in the Health Services Department. (100% County General Fund)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 25 ADOPT Position Adjustment Resolution No. 22349 to add four Intermediate Clerk-Project (represented) positions, and
cancel four Associate Teacher-Project (represented) positions and two Infant/Toddler Associate Teacher-Project (represented)
positions in the Employment and Human Services Department, Community Services Bureau. (50% Federal, 50% State)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Grants & Contracts
APPROVE and AUTHORIZE execution of agreements between the County and the following agencies for receipt of fund
and/or services:
C. 26 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to apply for and accept an
amount not to exceed $400,000 from the Blue Shield of California Foundation grant for the Leveraging Collaboration for
Domestic Violence Project for the period January 1, 2019 through December 31, 2020. (No required match)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 27 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract containing modified
indemnification language with the City of Richmond, to pay the County an amount not to exceed $100,000 to provide
homeless outreach services under the Coordinated Outreach, Referral and Engagement Program for the period October 1, 2018
through June 30, 2019. (No County match)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 28 ADOPT Resolution No. 2018/523 approving and authorizing the Public Works Director, or designee, to submit and accept
if awarded, a grant application to the State of California Department of Resources Recycling and Recovery for rubberized
asphalt concrete and chip seal projects, Countywide. (No County Match)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 29 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract containing modified
October 16, 2018 BOS Minutes 5
C. 29 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract containing modified
indemnification language with the California Department of Resources Recycling and Recovery, to pay the County an amount
not to exceed $26,520 to support the solid waste facilities, permits, and inspections for the Environmental Health Division
Solid Waste Program for the period July 1, 2018 through October 29, 2019. (No County match)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 30 ADOPT Resolution No. 2018/520 to approve and authorize the District Attorney, or designee, to submit an application
and execute a grant award agreement, including any extensions or amendments thereof, pursuant to State guidelines, with the
California Department of Insurance for funding of the Organized Automobile Fraud Activity Interdiction Program in the total
amount of $1,548,329 for the period of July 1, 2018 through June 30, 2021. (100% State)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 31 ADOPT Resolution No. 2018/553 approving and authorizing the District Attorney, or designee to submit an application
and execute a grant award agreement, including any extensions or amendments thereof, pursuant to State guideline, with the
California Department of Insurance for funding of the Automobile Insurance Fraud Prosecution Program in the amount of
$732,709 for the period July 1, 2018 through June 30, 2019. (100% State)
CORRECTED TO READ: ADOPT Resolution No. 2018/553 2018/535 approving and authorizing the District Attorney, or
designee to submit an application and execute a grant award agreement, including any extensions or amendments thereof,
pursuant to State guideline, with the California Department of Insurance for funding of the Automobile Insurance Fraud
Prosecution Program in the amount of $732,709 for the period July 1, 2018 through June 30, 2019. (100% State)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
APPROVE and AUTHORIZE execution of agreement between the County and the following parties as noted for the purchase
of equipment and/or services:
C. 32 APPROVE and AUTHORIZE the Public Defender, or designee, to execute a contract amendment with The Justice
Management Institute decreasing the payment limit by $6,000 to a new total payment limit of $110,886, eliminating the
County's obligation to pay travel related expenditures and extending the termination date from October 1, 2018 to September
30, 2019. (Cost Savings)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 33 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Frederick J.
Nachtwey, M.D., in an amount not to exceed $384,000 to provide pulmonary services at Contra Costa Regional Medical
Center and Health Centers for the period November 1, 2018 through October 31, 2021. (100% Hospital Enterprise Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 34 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Risk Management Division of the
County Administrator's Office, a blanket purchase order with Ventiv Technology, Inc., in the amount of $230,305 for the
workers' compensation and liability claims management system annual software licensing and maintenance, for the period
October 1, 2018 through September 30, 2019. (100% Self Insurance Internal Service Funds)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 35 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with Wound MD, PC, in
an amount not to exceed $500,000 to provide physician wound care services for Contra Costa Health Plan patients residing in
health care facilities, for the period October 1, 2018 through September 30, 2020. (100% Contra Costa Health Plan Enterprise
Fund II)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 36 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase
order with VigiLanz Corporation in an amount not to exceed $178,528 for the renewal of Dynamic Monitoring Suite software
maintenance, support and hosting for the period January 1, 2019 through December 31, 2020; and an amendment to the
Software License Agreement. (100% Hospital Enterprise Fund I)
October 16, 2018 BOS Minutes 6
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 37 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract amendment with The
Regents of the University of California, San Francisco, to extend the term from November 30, 2018 through November 30,
2020 with no change in the payment limit of $50,000, to continue to provide pediatric cardiology services at Contra Costa
Regional Medical Center. (100% Hospital Enterprise Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 38 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase
order amendment with Polymedco, Inc., to increase the payment limit by $300,000 to a new payment limit of $780,000 for
reagents and supplies to perform immunochemical fecal occult blood testing for the Clinical Laboratory at Contra Costa
Regional Medical Center for the period September 1, 2015 through August 31, 2019. (100% Hospital Enterprise Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 39 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase
order with Smith and Nephew, Inc., in an amount not to exceed $600,000 for medical supplies for the Operating Room at
Contra Costa Regional Medical Center for the period January 1, 2019 through December 31, 2020. (100% Hospital Enterprise
Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 40 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase
order with Bay Cities Produce, Inc., in an amount not to exceed $550,000 for the purchase of perishable pre-prepared produce
and dairy products for the Contra Costa Regional Medical Center for the period November 1, 2018 through October 31, 2020.
(100% Hospital Enterprise Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 41 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase
order amendment with D.T. Davis Enterprises, Ltd. (dba Hovertech International), to increase the payment limit by $200,000 to
a new payment limit of $425,000 for hovermatt slings and other equipment and supplies for the Contra Costa Regional
Medical Center for the period December 1, 2016 through November 30, 2019. (100% Hospital Enterprise Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 42 APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director, a purchase
order amendment with Sanofi Pasteur, Inc., to increase the payment limit by $150,000 to a new payment limit of $375,000 for
vaccines and injectable medications at Contra Costa Regional Medical and Health Centers for the period January 1 through
December 31, 2018. (100% Hospital Enterprise Fund I)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 43 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with South Springs Home
Health Care, Inc., in an amount not to exceed $350,000 to provide home health care services for Contra Costa Health Plan
members for the period October 1, 2018 through September 30, 2020. (100% Contra Costa Health Plan Enterprise Fund II)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 44 APPROVE and AUTHORIZE the Purchasing Agent to amend a purchase order, on behalf of the Employment and Human
Services Department, with Kompan Playgrounds, Inc. to increase the payment limit by $99,000 from $150,000 for a new
payment limit not to exceed $249,000 for playground equipment at county childcare centers and to extend the term from
January 31, 2019 to January 31, 2020. (100% Federal)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 45 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract with
October 16, 2018 BOS Minutes 7
C. 45 APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a contract with
Orantes, LLC doing business as Tiny Toes Preschool in an amount not to exceed $107,000 to provide Early Head Start
Childcare Partnership program services for the period April 1, 2018 through June 30, 2019. (100% Federal, No County Match)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
Other Actions
C. 46 APPROVE and AUTHORIZE the Health Services Director, or designee, to execute a contract with the Napa Valley
Community College District to provide supervised field instruction to respiratory therapy students at Contra Costa Regional
Medical Center for the period October 1, 2018 through September 30, 2023. (No fiscal impact)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 47 ACCEPT the Annual Post-Consent Decree Equal Employment Opportunity Strategic Outreach and Department Specific
Goals Report, as recommended by the Hiring Outreach Oversight Committee.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 48 APPROVE amendments to the List of Designated Positions of the Ambrose Recreation & Park District, as recommended
by County Counsel.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 49 APPROVE the list of providers recommended by Contra Costa Health Plan's Peer Review and Credentialing Committee
on September 11, 2018, and by the Health Services Director, as required by the State Departments of Health Care Services and
Managed Health Care, and the Centers for Medicare and Medicaid Services.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 50 APPROVE the revised Advisory Council on Equal Employment Opportunity (ACEEO) By-laws as recommended by the
ACEEO and the Hiring Outreach Oversight Committee.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 51 ACCEPT the Contra Costa County Public Law Library Board of Trustees Fiscal Year 2017/18 Report, as recommended
by the County Administrator.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 52 ADOPT Resolution No. 2018/531 approving the Side Letter between Contra Costa County and the California Nurses
Association (CNA) modifying the Preamble and Section 64 Duration of Agreement of the Memorandum of Understanding to
extend the contract from September 30, 2018 through October 31, 2018, as recommended by the County Administrator.
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 53 ADOPT Resolution No. 2018/489 approving documents to facilitate a redemption of bonds and sale of Pinecrest
Apartments in Antioch, and authorizing the issuance of a Multifamily Housing Revenue Bond in an amount not to exceed
$10,816,192 to provide financing for the costs of acquisition and rehabilitation of Pinecrest and Terrace Glen Apartments in
Antioch, as recommended by the Conservation and Development Director. (100% Special Revenue Funds)
AYE: District I Supervisor John Gioia, District II Supervisor Candace Andersen, District III Supervisor Diane Burgis,
District IV Supervisor Karen Mitchoff, District V Supervisor Federal D. Glover
C. 54 APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute legal documents to
restructure two HOME Investment Partnerships loans and loan an additional $1,300,000 in HOME Investment Partnerships
Act funds to Antioch Recap, L.P., for the acquisition and rehabilitation of Pinecrest and Terrace Glen Apartment complexes in
Antioch, and ADOPT related findings and actions under the California Environmental Quality Act. (100% Federal)
RELISTED to October 23, 2018.October 16, 2018 BOS Minutes 8
RELISTED to October 23, 2018.
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 72 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.
Applications for personal subscriptions to the weekly Board Agenda may be obtained by calling the Office of the Clerk of the Board, (925)
335-1900. The weekly agenda may also be viewed on the County’s Internet Web Page:
www.co.contra-costa.ca.us
STANDING COMMITTEES
The Airport Committee (Supervisors Diane Burgis and Karen Mitchoff) meets on the second Wednesday of the month at 11:00 a.m. at Director
of Airports Office, 550 Sally Ride Drive, Concord.
The Family and Human Services Committee (Supervisors Candace Andersen and John Gioia) meets on the fourth Monday of the month at
10:30 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez.
The Finance Committee (Supervisors Karen Mitchoff 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 Hiring Outreach Oversight Committee (Supervisors Candace Andersen and Federal D. Glover) meets on the first Monday of every other
month at 1:00 p.m. in Room 101, County Administration Building, 651 Pine Street, Martinez.
The Internal Operations Committee (Supervisors Diane Burgis and Candace Andersen) meets on the second Monday of the month at 1:00 p.m.
in Room 101, County Administration Building, 651 Pine Street, Martinez.
The Legislation Committee (Supervisors Karen Mitchoff and Diane Burgis) 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 John Gioia and Federal D. Glover) meets on the first Monday of the month at 10:30 a.m. in
Room 101, County Administration Building, 651 Pine Street, Martinez.
The Transportation, Water & Infrastructure Committee (Supervisors Karen Mitchoff and Candace Andersen) meets on the second Monday
of the month at 9:00 a.m. in Room 101, County Administration Building, 651 Pine Street, Martinez.
Airports Committee October 31, 2018 11:00 a.m.See above
Family & Human Services Committee October 22, 2018 10:30 a.m.See above
Finance Committee October 22, 2018 9:00 a.m. See above
Hiring Outreach Oversight Committee December 3, 2018 1:00 p.m.See above
October 16, 2018 BOS Minutes 9
Internal Operations Committee November 12, 2018 Canceled
December 10, 2018
1:00 p.m.See above
Legislation Committee November 12, 2018 Canceled
Special Meeting November 5, 2018
10:30 a.m. Room 108
Public Protection Committee November 5, 2018 10:30 a.m.See above
Transportation, Water & Infrastructure Committee November 12, 2018 Canceled
Special Meeting November 8, 2018
3:00 p.m.See above
PERSONS WHO WISH TO ADDRESS THE BOARD DURING PUBLIC COMMENT OR WITH
RESPECT TO AN ITEM THAT IS ON THE AGENDA, MAY BE LIMITED TO TWO (2) MINUTES
A LUNCH BREAK MAY BE CALLED AT THE DISCRETION OF THE BOARD CHAIR
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 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
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)
October 16, 2018 BOS Minutes 10
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 Syndrome
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
October 16, 2018 BOS Minutes 11
RECOMMENDATION(S):
1. OPEN the public hearing, ACCEPT public testimony, and CLOSE the hearing.
2. ADOPT Resolution No. 2018/524, establishing new hangar and tie-down rental rates and new rates for
maintenance and other services at Buchanan Field Airport and Byron Airport.
FISCAL IMPACT:
No impact to the General Fund. The Airports Division operates as an Enterprise Fund and pays for all of its
operating expenses from rents and other charges paid by airport users; no County General Fund dollars are
used. The proposed fee schedule is intended to cover the cost of new and existing services provided by the
Airports Division.
The proposed fee schedule includes a reduction in the rental rates for County-managed hangars and
tie-downs, to make them more regionally competitive. Lowering the rental rates could result in a $65,514
decrease in annual revenue to the Airport Enterprise Fund.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
D.3
To:Board of Supervisors
From:Keith Freitas, Airports Director
Date:October 16, 2018
Contra
Costa
County
Subject:Hearing to Consider New Rates and Charges for Buchanan Field Airport and Byron Airport
October 16, 2018 BOS Minutes 12
FISCAL IMPACT: (CONT'D)
However, the rate reduction is also expected to increase patronage and lead to increased revenue in
future years. The decrease has been reflected in the 2018-19 Fiscal Year budget.
BACKGROUND:
Airports Must Be Self-Sustaining
The Federal Aviation Administration requires the County airports to be operated and developed as
financially self-sustaining public use facilities. Financial sustainability is achieved when the airports are
developed and used at their highest and greatest potential. Financial sustainability is further achieved by
charging appropriate rates to cover the cost to operate and maintain the facilities. Updating the airports’
rates and charges, to enable the airports to charge for all of the services they provide and to establish
suitable rental rates to use the airports for private, commercial and development investment functions is
one way the Airports Division is striving to achieve this goal. The rates for services are consistent with
the Airports’ Strategic Plan objectives to diversify the revenue base, increase revenue generation, and
improve the financial well-being of the County airport system and its Airport Enterprise Fund.
Competitive Regional Market
The Airports Division is a unique entity within the County system; it operates as a business within a
governmental organization as its customers have a choice of many airports regionally. Airport staff
performed a market survey of our regional competitors (Livermore, Hayward, Napa, Sonoma, Stockton
and Nut Tree) and found that the rates in effect for Buchanan Field and Byron Airports were on the high
end of the rate range. To best position Buchanan Field and Byron Airports to be regionally competitive,
the new hangar and tie-down rates have been lowered and they will adjust every three years instead of
annually. The rate changes are consistent with the Airports’ Strategic Plan objective to best position the
Airports Division to react and behave more like a business in order to successfully compete for
marketplace in the region.
The reduction of hangar and tie-down rates will result in an approximate cost of $65,514 annually to the
Airport Enterprise Fund. This cost is based on applying the proposed rate reduction to occupied facilities.
While all of the County’s hangars are currently occupied, the wait list for each type of facility has
substantively shortened over the years making it more difficult to rent available hangars in a timely
manner. The cost of the County’s hangars is often cited as a reason for leaving the County’s airports and
declining a County hangar when offered. Moreover, the County’s tie-downs are overall less than 40%
occupied. Reducing the hangar and tie-down fees is expected to increase long-term patronage at both
airports, which will increase the overall revenue for the Airport Enterprise Fund. Lowering the rates is
an integral component of the Airports’ economic strategy to maintain high occupancy rates in a
competitive environment thus improving the financial well-being of the airport system and Airport
Enterprise Fund.
Another approach the Airports Division is taking is to provide certain rate reductions to existing tenants
to further tenant and business retention and attraction goals. One of the most powerful marketing tools
for an airport is its existing tenants and businesses; their experience (positive or negative) is quickly
transmitted to potential new tenants and businesses. To better ensure a positive experience and
word-of-mouth referral, existing tenants and businesses would receive a rent discount if they: (1) have
more than one hangar or tie-down; (2) prepay 12-months or more in rent; (3) refer a pilot or tenant that
rents a hangar or tie-down; and/or (4) refer a business that enters into a lease or license agreement with
the County. A discount will also be provided to a new hangar or tie-down tenant who received their
October 16, 2018 BOS Minutes 13
pilot’s license through a business located on one of the County’s airports. The discounts are designed to
motivate tenants to more aggressively market the airports, which should result in more economic
development (tenants and businesses) of the airports leading to increased revenue generation and job
opportunities. The discount program is consistent with the Airports’ Strategic Plan objective to attract
business aircraft and aeronautical businesses in addition to attracting general aviation aircraft and pilots.
Update to Rates and Charges
Resolution 2018/524 establishes rates and charges for the Airports Division that supersede the rates and
charges established by Resolution 94/286, which was adopted on May 24, 1994. The rates and charges
established in 1994 applied only to Buchanan Field Airport, as Byron Airport was not then a County
airport. In addition, the rates and charges established in 1994 do not reflect the various types of rentals,
or the breadth of services that are currently offered without charge at the airports as there is no fee
structure to offset these costs.
In addition to the need to establish rates and charges for Byron Airport, the County needs to formally
establish the rental rates that apply to the roughly 100 hangars the County has acquired since the
adoption of Resolution 94/286. The hangars became County property upon the expiration or termination
of long-term ground leases. Airport rates and charges also need to be updated to eliminate services no
longer provided and to include services that have been added since 1994.
The rates and charges being proposed are attached. The methods used to determine the rates and charges
for each category is set forth below.
Aircraft Tie-Down and Transient Parking Fees are based on a regional market
survey to facilitate tenant/business attraction goals.
1.
Hangar Rental Fees are based on a regional market survey to best ensure that the County’s hangars
maintain a high occupancy rate and are competitively positioned for tenant/business retention and
attraction.
2.
Tenant Rent Discount Incentives are a unique credit to encourage our tenants/businesses to more
aggressively market the airports which will increase and further diversify the revenue to the
Airport Enterprise Fund.
3.
Miscellaneous Fees are based on a regional market survey to cover the cost of the services that are
provided.
4.
Hourly-Rate Fees: The Airports staff services hourly rates are based on the
average hourly rate for employees in the administrative and operations
positions.
a.
Fixed-Rate Fees: The amounts charged for hangar swaps, agreement modification, lateb.
October 16, 2018 BOS Minutes 14
submission of insurance certificates, gate access control cards, flight instructor and mechanic
registration, landing fees, ground transportation services, airport badges and training are
based on rates that other regional airports charge for like services.
Lease, license, Permission to Enter, and other applicable land use rates are established through
negotiations with tenants. Airports staff considers the following factors to establish land use rates:
market analysis of comparable regional airports; existing lease/license/other agreements for
comparable use; services to be provided; size of desired location; duration/term; and development
cost if applicable.
5.
The rates and charges for the County airports will be effective on January 1, 2019.
CONSEQUENCE OF NEGATIVE ACTION:
If the rates and charges are not adopted, the County’s airports will continue to operate under the existing
rates and charges. As such, the Airports Division would not have the ability to cover the costs for
additional services. In addition, the County hangar and tie-down rates will continue to be at the high end
of the range for the local market, which could result in the County’s airports being less regionally
competitive.
CLERK'S ADDENDUM
Speakers: Tome Weber, CCC Aviation Advisory Committee; Eric Meinbress, CCC Aviation Advisory
Committee.
AGENDA ATTACHMENTS
Resolution No. 2018/524
Res 2018/524 New Airport Rates & Charges
Notice of Public Hearing
Airport Pay Scale Range
MINUTES ATTACHMENTS
Signed Resolution No. 2018/524
October 16, 2018 BOS Minutes 15
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/524
IN THE MATTER OF APPROVING RATES AND CHARGES FOR BUCHANAN FIELD AIRPORT AND BYRON
AIRPORT
WHEREAS, there is a need to establish new rates and charges for space rental and the services provided at Buchanan Field
Airport and Byron Airport in order to allow the County’s airports to continue to be financially self-sustaining, as required by the
United States Department of Transportation Federal Aviation Administration (FAA); and
WHEREAS, the Director of Airports has developed a schedule of rates and charges for the use of the County’s airports and their facilities, taking into account the FAA Policies
regarding the Airport Rates and Charges and the California State Controller’s Office Division of Accounting Standards and Procedures for Counties; and
WHEREAS, FAA Policy 2.1 (Federal Register Vol. 61, No. 121, RIN 2120-AF90, Docket No. 27782) permits rates and charges
to be set by resolution; and
WHEREAS, notice of hearing of the proposed rates and charges was published twice in the manner set forth in section 6062a of
the Government Code.
NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of Contra Costa County as follows:
The Board hereby establishes those rates and charges shown on Exhibit A, attached hereto and incorporated herein.1.
The Board finds the adoption of the rates and charges established by this resolution is categorically exempt from the
California Environmental Quality Act pursuant to Title 14, California Code of Regulations, section 15273(a)(1) and (2).
2.
PASSED AND ADOPTED by the Board of Supervisors at a regular meeting held on October 16, 2018.
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
October 16, 2018 BOS Minutes 16
October 16, 2018 BOS Minutes 17
Resolution No. 2018/524
IN THE MATTER OF APPROVING RATES AND CHARGES FOR
BUCHANAN FIELD AIRPORT AND BYRON AIRPORT
WHEREAS, there is a need to establish new rates and charges for space rental and the
services provided at Buchanan Field Airport and Byron Airport in order to allow the County’s
airports to continue to be financially self-sustaining, as required by the United States Department
of Transportation Federal Aviation Administration (FAA); and
WHEREAS, the Director of Airports has developed a schedule of rates and charges for
the use of the County’s airports and their facilities, taking into account the FAA Policies
regarding the Airport Rates and Charges and the California State Controller’s Office Division of
Accounting Standards and Procedures for Counties; and
WHEREAS, FAA Policy 2.1 (Federal Register Vol. 61, No. 121, RIN 2120-AF90,
Docket No. 27782) permits rates and charges to be set by resolution; and
WHEREAS, notice of hearing of the proposed rates and charges was published twice in
the manner set forth in section 6062a of the Government Code.
NOW, THEREFORE, BE IT RESOLVED by the Board of Supervisors of Contra Costa
County as follows:
1. The Board hereby establishes those rates and charges shown on Exhibit A, attached
hereto and incorporated herein.
2. The Board finds the adoption of the rates and charges established by this resolution is
categorically exempt from the California Environmental Quality Act pursuant to Title 14,
California Code of Regulations, section 15273(a)(1) and (2).
PASSED AND ADOPTED by the Board of Supervisors at a regular meeting held on October 16,
2018.
///
October 16, 2018 BOS Minutes 18
Rates & Charges Effective January 1, 2019 EXHIBIT A Page 1
I. RATES FOR AIRCRAFT TIE-DOWN AND TRANSIENT PARKING
Location/Type Aircraft
Wingspan Monthly Rate Daily
Rate
A. BUCHANAN FIELD
Tie -Down
Gravel Area……………………………………………………….. 40 feet or less $ 35.00
Northwest Ramp…………………………………………………... 40 feet or less $ 45.00
Southwest Ramp…………………………………………………... 40 feet or less $ 45.00
East Ramp Rows B through K ……………………………………. 40 feet or less $ 55.00
East Ramp Row A………………………………………………… 40 feet or less $ 85.00
Transient Parking
Itinerant Parking – Transient Ramp*.…………………………… Under 50 feet ………………. $ 5.00
Itinerant Parking – Transient Ramp*.…………………………… 50 feet or more ……………….. $ 25.00
Transient Daily Small Hangar Rental……………………………………………………………………... $ 65.00
Transient Daily Medium & Large Hangar Rental………………………………………………………… $110.00
B. BYRON
Tie -Down
Ramp………………………………………………………………. Under 40 feet $ 35.00
Between Hangars ………………………………………………….. Under 40 feet $ 45.00
Transient Parking
Itinerant Parking – At any Transient Ramp*…………………......... Under 50 feet ………………. $ 5.00
Itinerant Parking – At any Transient Ramp*……………………..... 50 feet or more ………………. $ 25.00
Transient Daily Hangar Rental……………………………………………………………………………. $ 50.00
*Fee may be waived if parking is validated by an airport business that is enrolled in the Airports’ Overnight
Parking Fee Waiver Program.
October 16, 2018 BOS Minutes 19
Rates & Charges Effective January 1, 2019 EXHIBIT A Page 2
II. RATES FOR MONTHLY HANGAR RENT FOR AIRCRAFT STORAGE
Location/Type Monthly Rent*
A. BUCHANAN FIELD
Small/Medium Portable Hangar – Ground Rent…………………………………… $ 115.00
Large Portable Hangar – Ground Rent…………………………………………...... $ 130.00
Shade Hangar – South Facing………………………………………......................... $ 140.00
Shade Hangar – North Facing…………………………………………..................... $ 165.00
T-Hangar – South Facing…………………………………………………………... $ 350.00
T-Hangar – Modernized South Facing……………………………………………... $ 370.00
T-Hangar – North Facing…………………………………………………………... $ 370.00
T-Hangar – Modernized North Facing……………………………………………... $ 390.00
Medium Hangar – South Facing…………………………………………………… $ 470.00
Median Hangar – Modernized South Facing………………………………………. $ 490.00
Medium Hangar – North Facing…………………………………………………… $ 490.00
Median Hangar – Modernized North Facing………………………………………. $ 510.00
Large Hangar – South Facing……………………………………………………… $ 600.00
Large Hangar – Modernized South Facing………………………………………… $ 620.00
Large Hangar – North Facing……………………………………………………… $ 620.00
Large Hangar – Modernized North Facing………………………………………… $ 640.00
Executive Hangar – South Facing………………………………………………….. $ 470.00
Executive Hangar – Modernized South Facing……………………………………. $ 490.00
Executive Hangar – North Facing………………………………………………….. $ 490.00
Executive Hangar – Modernized North Facing……………………………………. $ 510.00
Storage/Half Hangar Units…………………………………………………………. $ 185.00
B. BYRON
T-Hangars…………………………………………………………………………... $ 260.00
Portable Hangar – Ground Rent……………………………………………………. $ 96.00
Large Portable Hangar – Ground Rent…………………………………………...... $ 120.00
Storage/Half Hangar Units…………………………………………………………. $ 140.00
Note: Rents increase every 3 years on January 1 by an amount equal to the 3-year average CPI change (rounded
to the nearest whole dollar) ending October 31st , not to exceed 6%.
October 16, 2018 BOS Minutes 20
Rates & Charges Effective January 1, 2019 EXHIBIT A Page 3
III. HANGAR RENTAL RATE DISCOUNTS – APPLICABLE TO BOTH AIRPORTS
A. A tenant who prepays 12 months in advance will receive a 3% reduction in rent for the 12 -month period. There
is a maximum discount of $1,000 per year.
B. A hangar tenant who refers a pilot who rents a tie-down or hangar will receive a one-time $50 rent credit after 6
months of tenancy by the referred pilot. A tie-down tenant who refers a pilot who rents a tie -down or hangar
will receive a one-time $15 rent credit after 6 months of tenancy by the referred pilot. (In all cases, the referred
pilot must continue to be a tenant during the rent credit month.)
C. A tenant who refers a business that enters into a lease agreement with the County will receive, after their sixth
month of operation at the airport by the referred business, an amount equal to 2% of the amount the County
receives from the business each month for the subsequent 6-month period. (The maximum benefit is $1,000
over 6 months and the business must continue to be a tenant during the rent credit period.)
D. Frequent tenant discount : A tenant who rents more than one hangar or tie-down at a time will receive a 5%
discount on rent for each additional hangar or tie -down space. (The discount applies to the lowest-priced rent
and there is a maximum discount of $1,500 per year.)
E. A person who obtains a pilot’s license through a business located on Buchanan Field or Byron Airport and then
rents a hangar or tie-down from the County will receive, after the second month of tenancy, a one-time $50 rent
credit on the hangar or a $15 rent credit on the tie-down.
October 16, 2018 BOS Minutes 21
Rates & Charges Effective January 1, 2019 EXHIBIT A Page 4
IV. MISCELLANEOUS FEES APPLICAB LE TO BOTH AIRPORTS
A. Fixed Fees
Hangar Swap Fee……………………………………………………………………..$ 100.00 Per Tenant
Hangar Upgrade/Move Fee…………………………………………………………...$ 100.00 Plus*
Hangar Agreement Modification/Change Fee………..………………………………$ 100.00 Per Occurrence
*In addition to the $100 upgrade/move fee, tenant must pay the rent for both locations until tenant is fully
out of the original location
1. Insurance Certificate Late Fees
Up to 30 Days after Existing Certificate has Lapsed…………………………………………$25.00 Late Fee
Up to 60 Days after Existing Certificate has Lapsed …………………………………………$50.00 Late Fee
Up to 90 Days after Existing Certificate has Lapsed …………………………………………$75.00 Late Fee
Note: Failure to Provide an Insurance Certificate within 90 Days after Existing Certificate has Lapsed is
Default and Grounds for Termination
2. Gate Access Control Cards
Deposit…………………………………………………………………………………………......….$ 30.00
Replacement of Lost or Damaged…………………………………………………………………..…$ 30.00
Reactivation Fee Per Occurrence …………………………………………………………………......$ 15.00
3. Flight Instructor Registration
Annually……………………………………………………………………………………………….$ 100.00
4. Aircraft Mechanic Registration
Annually……………………………………………………………………………………………….$ 100.00
5. Landing Fees*
Under 12,500 lbs……………………………………………………………………………..………..$ 10.00
12,500 lbs. and over………………………………………………………………………………..….$ 25.00
*Landing fees apply to commercial operations that are not under an agreement with the County.
6. Ground Transportation Providers
One Time Administrative Fee…………………………………………………………………....$ 1,000.00
Annual User Fee……………………………………...……………………………………..…....$ 1,200.00*
*Or $0.50 per each trip (Note: a trip is defined as a pick up or drop off)
7. Airport Movement Area Authorization/ID Badge
Issuance…………………………………………………………………………………………...No Cost
Replacement Badge Per Occurrence……………………………………………………………...$ 30.00
October 16, 2018 BOS Minutes 22
Rates & Charges Effective January 1, 2019 EXHIBIT A Page 5
IV. MISCELLANEOUS FEES APPLICABLE TO BOTH AIRPORTS (CONTINUED)
8. Driver/Fueler Training
First Training Class……………………………………………………………………………………..No Cost
Each Subsequent Training Class……………………………………………………………………..$ 300.00
Replacement Badge…………………………………………………………………………………..$ 30.00
B. Variable Fees
1. Airport Sweeper, Fire Hydrant Clean Out, or Other Assistance Fee
$125.00 per hour for each airport personnel. This fee will be increased annually on July 1 for each year after
July 1, 2018, according to the change in the Consumer Price Index (CPI) for the preceding one-year period
ending April 30 of each year and rounded to nearest whole dollar.
2. Airport Administration Staff Services for Account Reconciliation, Insurance Certificate Assistance,
Property Re -inspections and/or Other Related Actions Fee
$125.00 per hour or partial hour for each airport personnel. This fee will be increased annually on July 1 for
each year after July 1, 2018, according to the change in the Consumer Price Index (CPI) for the preceding
one-year period ending April 30 of each year and rounded to nearest whole dollar.
3. Property Fees (such as putting spray on the airfield pavement)
Cost of time and materials necessary to restore property to former condition
4. Aircraft Improperly Parked & Obstructs Operations or Compromises Safety Fee
Relocation fee……………………………………………….…….$ 125.00 Per Hour or Portion of an Hour
5. Aircraft Obstruction Runway and/or Taxiway Fees
There is no charge for the first two (2) hours after a runway obstruction occurs. After the first two hours,
there is a charge in the amount of $500 for each thirty minutes or portion thereof.
6. Property Development
The developer is responsible for all costs associated with the development of airport property, including
environmental review, design, and construction, but excluding Airport staff’s time. Upon the County’s
acceptance of a developer’s proposal, the developer is required to make a good faith deposit of $10,000.
If within six months of the proposal’s acceptance by the County, the developer fails to make meaningful
progress in developing the agreed-upon development, as determined by the County’s Director of Airports,
one-half of the security deposit will be non-refundable.
If within twelve months of the proposal’s acceptance by the County, the developer fails to make meaningful
progress in developing the agreed-upon development, as determined by the County’s Director of Airports,
the entire security deposit will be non-refundable.
If the developer enters into a long-term lease with the County for the site of the development, the remaining
portion of the good faith deposit will be applied to the cost to the Airport of putting the lease in place,
excluding the cost of Airport staff’s time, but including the cost of other County staff’s time. At developer’s
election, any remaining balance will be refunded to the developer or a pplied to ground rent.
October 16, 2018 BOS Minutes 23
NOTICE OF A PUBLIC HEARING BEFORE THE
THE BOARD OF SUPERVISORS OF THE CONTRA COSTA
COUNTY PUBLIC WORKS – AIRPORTS DIVISION
NOTICE OF PUBLIC HEARING AND AVAILABILITY OF DATA
The Contra Costa County Board of Supervisors will hold a public hearing on October 16,
2018, at 9:30 a.m. in the Board of Supervisors’ Chambers, O’Brien Administration Building, 651
Pine Street, Martinez, California, to consider adopting Resolution No. 2018/****, which will
supersede Resolution 94/286, to adopt new rates and charges for Buchanan Field Airport and
Byron Airport. If adopted, the new rates and charges will go into effect on January 1, 2019. Oral
and written presentations can be made at the hearing.
At least 10 days before the hearing, a copy of the proposed resolution, and all background
materials regarding the cost charged for airport staff time to provide the services and the revenue
sources anticipated for funding those costs, will be available for inspection and copying at the
Office of the Clerk of the Board of Supervisors located at the above address, and at the office of
the Contra Costa County Director of Airports, located at 550 Sally Ride Drive, Concord,
California.
David Twa, Clerk of the Board of Supervisors and
County Administrator
Dated: October 2, 2018
By: _________________________
Deputy Clerk
Government Code Section § 6066
October 16, 2018 BOS Minutes 24
Contra Costa County Airports
Pay Scale Range
Administration – 7
Staff members
Salary & Overhead*
Average Hourly Rate
(Total hourly rate / 7 Staff
members)
1 $104/hour
2 $ 185/hour
3 $91/hour
4 $84/hour
5 $ 140/hour
6 $ 57/hour
7 $ 211/hour
Total $ 874/hour $125/hour
Operations – 7 Staff
Members
Average Hourly Rate
(Total Salary / 7 Staff
members)
1 $162/hour
2 $178/hour
3 $118/hour
4 $138/hour
5 $126/hour
6 $116/hour
7 $98/hour
Total $936/hour $134/hour
One or more authorized staff members may be involved with providing any one service.
*Anticipates salary adjustments by early 2019
October 16, 2018 BOS Minutes 25
RECOMMENDATION(S):
APPROVE plans for the San Pablo Dam Road Landslide and Bench Repair, as recommended by the Public
Works Director, El Sobrante area.
FISCAL IMPACT:
The cost is to be funded by 100% Local Road Funds.
BACKGROUND:
The purpose of this repair is to fix a failed slope along the west side of San Pablo Dam Road approximately
0.5 miles south of Tri Lane in the El Sobrante area. The work will reconstruct the failed slope and
maintenance access bench with engineered fill. The work also includes constructing a concrete v-ditch
located at the back side of the maintenance access bench, and modifying the existing hydraugers to drain to
the new concrete v-ditch.
CONSEQUENCE OF NEGATIVE ACTION:
The landslide and maintenance access bench will not be repaired.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Brian Louis 925
313-7039
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 1
To:Board of Supervisors
From:Brian M. Balbas, Public Works Director/Chief Engineer
Date:October 16, 2018
Contra
Costa
County
Subject:Approve Plans for San Pablo Dam Road Landslide and Bench Repair
October 16, 2018 BOS Minutes 26
RECOMMENDATION(S):
APPROVE the Alhambra Valley Road and Bear Creek Road Intersection Safety and Sideshow Deterrence
Project (Project), Briones Valley area. [County Project No. 0662-6U4203, DCD-CP# 18 - 29] (Districts I,
V).
DETERMINE the Project is a California Environmental Quality Act (CEQA), Class 1(c) Categorical
Exemption, pursuant to Article 19, Section 15301 of the CEQA Guidelines, and
DIRECT the Director of Department of Conservation and Development to file a Notice of Exemption with
the County Clerk, and
AUTHORIZE the Public Works Director, or designee, to arrange for payment of a $25 fee to the
Department of Conservation and Development for processing, and a $50 fee to the County Clerk for filing
the Notice of Exemption.
FISCAL IMPACT:
Estimated Project cost: $41,000, 100% Local Road Funds.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Laura Cremin
925-313-2015
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Ave Brown - Environmental Division Manager
C. 2
To:Board of Supervisors
From:Brian M. Balbas, Public Works Director/Chief Engineer
Date:October 16, 2018
Contra
Costa
County
Subject:APPROVE the Alhambra Valley Rd & Bear Creek Rd Intersection Safety & Sideshow Deterrence Project and take
related actions under CEQA.
October 16, 2018 BOS Minutes 27
BACKGROUND:
The purpose of this Project is to install and evaluate the effectiveness of a road feature to deter illegal
sideshow activities (spinning circles and other illegal vehicular stunts) at the intersection of Alhambra
Valley Road and Bear Creek Road. The community has voiced concerns about the sideshows. In
response, District I, Supervisor Gioia’s Office has directed Contra Costa County Public Works to
determine measures to prevent these illegal activities.
The Project consists of installing a series of 6-inch and/or 8-inch raised ceramic domes at the four
approaches to the intersection. The ceramic domes will be strategically placed along the centerline
striping and in the shoulder areas. The intent of the raised features is to provide a visual, auditory, and
sensory deterrence, while minimizing the impact to most road users who follow the vehicle code. The
Project will test if raised ceramic domes have the intended deterrent effect on sideshow activities.
CONSEQUENCE OF NEGATIVE ACTION:
Delay in approving the project may result in a delay of design and construction of a project designed to
enhance public safety.
ATTACHMENTS
CEQA Document
October 16, 2018 BOS Minutes 28
October 16, 2018 BOS Minutes 29
October 16, 2018 BOS Minutes 30
October 16, 2018 BOS Minutes 31
October 16, 2018 BOS Minutes 32
October 16, 2018 BOS Minutes 33
RECOMMENDATION(S):
ADOPT Resolution No. 2018/491 approving the second extension of the Subdivision Agreement for minor
subdivision MS14-00004, for a project being developed by Cynthia Erb & Associates, LLC, as
recommended by the Public Works Director, Alamo area. (District II)
FISCAL IMPACT:
No fiscal impact.
BACKGROUND:
The terminal date of the Subdivision Agreement needs to be extended. The developer has not completed the
required improvements and has requested more time. (Approximately 75% of the work has been completed
to date.) By granting an extension, the County will give the developer more time to complete improvements
and keeps the bond current. The development is in the warranty period and the bond needs to be kept up to
date.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor
Contact: Randolf Sanders (925)
313-2111
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Randolf Sanders- Engineering Services, Alex Lopez - Engineering Services, Trixie Gothro - Design & Construction, Ruben Hernandez - DCD, T-06/25/2019, Cynthia Erb &
Associates, Platte River Insurance Company
C. 3
To:Board of Supervisors
From:Brian M. Balbas, Public Works Director/Chief Engineer
Date:October 16, 2018
Contra
Costa
County
Subject:Approving the second extension of the Subdivision Agreement for minor subdivision MS14-00004, Alamo area.
October 16, 2018 BOS Minutes 34
CONSEQUENCE OF NEGATIVE ACTION:
The terminal date of the Subdivision Agreement 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.
AGENDA ATTACHMENTS
Resolution No. 2018/491
Subdivision Agreement Extension
MINUTES ATTACHMENTS
Signed: Resolution No. 2018/491
October 16, 2018 BOS Minutes 35
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/491
IN THE MATTER OF approving the second extension of the Subdivision Agreement for minor subdivision MS14-00004, for a
project being developed by Cynthia Erb & Associates, LLC., as recommended by the Public Works Director, Alamo area.
(District II)
WHEREAS the Public Works Director having recommended that he be authorized to execute the second agreement extension
which extends the Subdivision Agreement between Cynthia Erb & Associates, LLC., and the County for construction of certain
improvements in subdivision MS14-00004, Alamo area, through 2019.
APPROXIMATE PERCENTAGE OF WORK COMPLETE: 75%
ANTICIPATED DATE OF COMPLETION: Dec 2019
BOND NO.: 41326739 Date: July 22, 2015
REASON FOR EXTENSION: Landscaping needs to be installed.
NOW, THEREFORE, BE IT RESOLVED that the recommendation of the Public Works Director is APPROVED.
Contact: Randolf Sanders (925) 313-2111
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Randolf Sanders- Engineering Services, Alex Lopez - Engineering Services, Trixie Gothro - Design & Construction, Ruben Hernandez - DCD,
T-06/25/2019, Cynthia Erb & Associates, Platte River Insurance Company
October 16, 2018 BOS Minutes 36
October 16, 2018 BOS Minutes 37
October 16, 2018 BOS Minutes 38
October 16, 2018 BOS Minutes 39
October 16, 2018 BOS Minutes 40
October 16, 2018 BOS Minutes 41
RECOMMENDATION(S):
ADOPT Resolution No. 2018/516 proclaiming the week of October 20-26, 2018 as “California Flood
Preparedness Week” in Contra Costa County, as recommended by the Public Works Director, Countywide.
FISCAL IMPACT:
No fiscal impact.
BACKGROUND:
This year, the State has declared “California Flood Preparedness Week” to be on October 20-26, 2018.
The County would join federal, state, and other local agencies during Flood Preparedness Week in raising
awareness of flood risk in California. As part of the Unincorporated County Floodplain Management
Program administered by the Public
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Jocelyn LaRocque- Engineering Services, Mike Carlson- Deputy, Slava Gospodchikov - Engineering Services , Steve Padilla, David Twa. CAO, Ken
Dahl - Engineering Services
C. 4
To:Board of Supervisors
From:Brian M. Balbas, Public Works Director/Chief Engineer
Date:October 16, 2018
Contra
Costa
County
Subject:PROCLAIM the week of October 20-26, 2018 as “California Flood Preparedness Week” in Contra Costa County
October 16, 2018 BOS Minutes 42
BACKGROUND: (CONT'D)
Works Department, Public Works would like to provide information about the Unincorporated Contra
Costa County Floodplain Program and resources on flood risk and preparedness. This information is also
available through the California Department of Water Resources, specifically the Flood Preparedness
website, which provides links to additional information from such agencies as the Federal Emergency
Management Agency and the National Flood Insurance Program.
CONSEQUENCE OF NEGATIVE ACTION:
Contra Costa County will not declare that week as the statewide California Flood Preparedness Week.
AGENDA ATTACHMENTS
Resolution No. 2018/516
MINUTES ATTACHMENTS
Signed: Resolution No. 2018/516
October 16, 2018 BOS Minutes 43
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/516
IN THE MATTER OF: RECOGNIZING California Flood Preparedness Week October 20-26, 2018.
WHEREAS the County of Contra Costa recognizes the significant public safety threat flooding poses to the population, assets,
and economy of our County; and
WHEREAS the floodplain management program services provided in our community are an integral part of our citizen’s
everyday lives; and
WHEREAS the support and understanding of an informed citizenry is vital to the efficient administration of the Unincorporated
Contra Costa County Floodplain Program; and
WHEREAS the health and safety of this community greatly depend on the administration of this program; and
WHEREAS during the California Flood Preparedness Week, local, state, and federal agencies across the state work together to
inform the public about the dangers or flooding, how to prepare their homes and families for a flood, and plan for recovery; and
WHEREAS California Flood Preparedness Week 2018 will be held statewide during the week of October 20-26, 2018; and
WHEREAS the theme for California Flood Preparedness Week 2018 will be “Be Aware, Be Prepared, and Take Action!”
NOW, THEREFOR, BE IT RESOLVED that the Board of Supervisors of Contra Costa County does hereby recognize October
20-26, 2018 as CALIFORNIA FLOOD PREPAREDNESS WEEK, support public awareness of flood risk, and encourages
County residents to take action to understand their flood risk and prepare appropriately.
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Jocelyn LaRocque- Engineering Services, Mike Carlson- Deputy, Slava Gospodchikov - Engineering Services , Steve Padilla, David Twa. CAO, Ken
Dahl - Engineering Services
October 16, 2018 BOS Minutes 44
October 16, 2018 BOS Minutes 45
RECOMMENDATION(S):
DENY claims filed by Anja Brey, Geny Marie Maria Dominguez, Chris Flucus, Clarita Gatchalian,
Roselyn May, Sergio and Rosa Moreno, and Sean Moton. DENY amended claim filed by CSE for Darlene
Drapkin.
FISCAL IMPACT:
No fiscal impact.
BACKGROUND:
Anja Brey: Property claim for damage to automobile windshield caused by loose
gravel left over from roadwork in the amount of $275.
Geny Marie Maria Dominguez: Personal injury claim for trip and fall due to
cracks in sidewalk in Concord in an amount to exceed $25,000.
Chris Flucus: Claim for unknown damages of $80 for unknown reasons by
unexplained causes.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Scott Selby
925.335.1400
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 5
To:Board of Supervisors
From:David Twa, County Administrator
Date:October 16, 2018
Contra
Costa
County
Subject:Claims
October 16, 2018 BOS Minutes 46
BACKGROUND: (CONT'D)
Clarita Gatchalian: Property claim for lost dentures at CCRMC in the amount of
$1500.
Roselyn May: Personal injury claim for damages in undisclosed amount
resulting from treatment at a health clinic.
Sergio & Rosa Moreno: Property claim for damage to automobile windshield
caused by loose gravel left over from roadwork in undisclosed amount.
Sean Moton: Property claim for lost denture at CCRMC in undisclosed amount.
CSE for Darlene Drapkin: Amended claim by insurer for property damage to
insured’s vehicle in the amount of $4060.36 as a result of a motor vehicle
accident with a County employee.
October 16, 2018 BOS Minutes 47
RECOMMENDATION(S):
ACCEPT Board members meeting reports for September 2018.
FISCAL IMPACT:
No fiscal impact.
BACKGROUND:
Government Code section 53232.3(d) requires that members of legislative bodies report on meetings
attended for which there has been expense reimbursement (mileage, meals, lodging ex cetera). The attached
reports were submitted by the Board of Supervisors members in satisfaction of this requirement. District I
and V has nothing to report.
CONSEQUENCE OF NEGATIVE ACTION:
The Board of Supervisors will not be in compliance with Government Code 53232.3(d).
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Joellen Bergamini
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 6
To:Board of Supervisors
From:David Twa, County Administrator
Date:October 16, 2018
Contra
Costa
County
Subject:ACCEPT Board members meeting reports for September 2018
October 16, 2018 BOS Minutes 48
ATTACHMENTS
District II September 2018 Report
District III September 2018
Report
District IV September 2018
Report
District I September 2018 Report
October 16, 2018 BOS Minutes 49
Supervisor Candace Andersen – Monthly Meeting Report September 2018
Date Meeting Location
4 Public Works Danville
6 CCCTA Lafayette
10 TWIC Martinez
10 Internal Operations Martinez
11 Board of Supervisors Martinez
12 CCCERA Concord
12 LAFCO Martinez
13 East Bay EDA Oakland
14 So County Mental Health San Ramon
15 East Bay Stand down Pleasanton
17 Alamo Liaison Danville
17 Mental Health Event Martinez
18 Board of Supervisors Martinez
18 TRAFFIX San Ramon
19 Stepping Up Conference Martinez
19 Alamo Rotary Alamo
20 CCCTA Concord
20 ABAG San Francisco
21 EBRCSA Alameda
21 Danville Chamber Danville
24 Lafayette Liaison _____________Lafayette
24 Family Human Services Martinez
25 Board of Supervisors Martinez
26 CCCERA Concord
27 East Bay EDA Pleasanton
27 CCCSWA Walnut Creek
29 SRV Emergency Preparedness San Ramon
October 16, 2018 BOS Minutes 50
Date Meeting Name Location
4-Sep Meeting with the District Attorneys' Association Martinez
4-Sep Meeting with District Attorney Diana Becton Martinez
4-Sep InterDrone Conference Las Vegas, NV
5-Sep InterDrone Conference Las Vegas, NV
6-Sep InterDrone Conference Las Vegas, NV
7-Sep InterDrone Conference Las Vegas, NV
8-Sep InterDrone Conference Las Vegas, NV
8-Sep Moonlight on the Mountain Event Danville
10-Sep Internal Operations Committee Meeting Martinez
10-Sep Meeting with Public Works and Delta Ranch Solar Martinez
10-Sep Meeting with Contra Costa Water Agency Martinez
10-Sep First 5 Commission Meeting Concord
11-Sep Board of Supervisors Meeting Martinez
11-Sep James Comey Presentation at Lesher Center Walnut Creek
12-Sep Meeting with Animal Services Director, Beth Ward Martinez
12-Sep Meeting with Sunrise Bistro Martinez
12-Sep Meeting with Bicycle Committee Appointee Martinez
12-Sep Constituent Meeting Martinez
12-Sep LAFCO Meeting Martinez
12-Sep Meeting with Public Defenders Office Martinez
13-Sep
Phone Meeting with Department of Conservation
and Development Martinez
13-Sep
Meeting with Local 1230 and Richland
Development Martinez
13-Sep
Meeting with Workforce Development Board
Director and Chair Martinez
13-Sep
Presentation to the Contra Costa County Fish and
Wildlife Fall Forum Martinez
14-Sep Meeting with Health Services Martinez
14-Sep
Meeting with Recreational Boaters of California,
Lenora Clark Brentwood
14-Sep Constituent Meeting Brentwood
15-Sep Marsh Creek Community Clean Up Brentwood
17-Sep Phone Meeting with 3DR Brentwood
17-Sep
Phone Meeting with Department of Conservation
and Development, Airports, County
Administrator's Office and the City of Brentwood Brentwood
Supervisor Diane Burgis - September 2018 AB1234 Report
(Government Code Section 53232.3(d) requires that members legislative bodies report on meetings
attended for which there has been expense reimbursement (mileage, meals, lodging, etc).
October 16, 2018 BOS Minutes 51
17-Sep Phone Meeting with Health Services Brentwood
17-Sep Screening of the "S" Word Martinez
18-Sep Board of Supervisors Meeting Martinez
18-Sep
Contra Costa County Fire Protection District
Meeting Martinez
18-Sep Housing Authority Meeting Martinez
19-Sep Meeting with Local 1230 Brentwood
19-Sep Meeting with California Public Utilties Commission Brentwood
19-Sep
Meeting with Center for Elders Independence in
Contra Costa County Brentwood
19-Sep Meeting with Cecchini Ranch Brentwood
19-Sep
Phone meeting with Mt. Diablo Unitarian
Universalist Church Brentwood
19-Sep Constituent Meeting Brentwood
20-Sep Ag Land Use Meeting Knightsen
20-Sep Oakley Fire Station #55 Grand Opening Oakley
20-Sep Meeting with Sierra Club and Constituents Brentwood
20-Sep Phone Meeting with CCC Airports and 3DR Brentwood
20-Sep Delta Protection Commission Meeting Stockton
21-Sep Phone Meeting with Delta Counties Coalition Brentwood
21-Sep
Meeting with JFK University Director, Solomon
Belette Pleasant Hill
21-Sep 20th Annual Labor-to-Labor Dinner Richmond
22-Sep APTA Conference Nashville, TN
23-Sep APTA Conference Nashville, TN
24-Sep APTA Conference Nashville, TN
25-Sep APTA Conference Nashville, TN
26-Sep APTA Conference Nashville, TN
27-Sep APTA Conference Nashville, TN
29-Sep City of Brentwood Library Grand Opening Brentwood
29-Sep Antioch First 5 Grand Opening Antioch
29-Sep 5th Annual APAPA Leadership Retreat Dinner Vacaville
* Reimbursement may come from an agency other than Contra Costa County
October 16, 2018 BOS Minutes 52
Purpose
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Supervisor Diane Burgis - September 2018 AB1234 Report
(Government Code Section 53232.3(d) requires that members legislative bodies report on meetings
attended for which there has been expense reimbursement (mileage, meals, lodging, etc).
October 16, 2018 BOS Minutes 53
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Business Meeting
Community Outreach
Community Outreach
Community Outreach
* Reimbursement may come from an agency other than Contra Costa County
October 16, 2018 BOS Minutes 54
Supervisor Karen Mitchoff
September 2018
DATE MEETING NAME LOCATION PURPOSE
09/05/18 BAAQMD Board Meeting San FranciscoDecisions on agenda items
09/05/18 CCTA Planning Committee Meeting Walnut Creek Decisions on agenda items
09/06/18 Contra Costa Mayor's Conference Clayton Community Outreach
09/08/18 Moonlight on the Mountain Danville Community Outreach
09/10/18 TWIC Meeting Martinez Decisions on agenda items
09/11/18 Board of Supervisors Meeting Martinez Decisions on agenda items
09/12/18 United Against GHGs: Dielsel Free by '33San FranciscoCommunity Outreach
09/13/18 TRANSPAC Pleasant Hill Decisions on agenda items
09/14/18
ABAG Admin Committee Special
Meeting San FranciscoDecisions on agenda items
09/17/18 BAAQMD Stationary Source Meeting
San
Francisco Decisions on agenda items
09/18/18 Board of Supervisors Meeting Martinez Decisions on agenda items
09/19/18
BAAQMD Ad Hoc Building Oversight
Mtg San FranciscoDecisions on agenda items
09/19/18 BAAQMD Board Meeting San FranciscoDecisions on agenda items
09/19/18 CCTA Board Meeting Walnut Creek Decisions on agenda items
09/20/18 Panelist at Cannabis Forum w/Elections Martinez Community Outreach
09/20/18
ABAG Legislation, Finance and Board
Meeting San FranciscoDecisions on agenda items
09/21/18 Labor to Labor Dinner Richmond Community Outreach
09/25/18 Board of Supervisors Meeting Martinez Decisions on agenda items
09/26/18 Delta Conservancy Sacramento Water Advocacy
October 16, 2018 BOS Minutes 55
Supervisor John Gioia
September – 2018 Monthly Meeting Statement
Government Code section 53232.3(d) requires that members of legislative bodies
report on meetings attended for which there has been expense reimbursement
(mileage, meals, lodging, etc.).
1. Meeting Date: September 6, 2018
Meeting: CSAC Board of Directors
Location: Sacramento, CA
2. Meeting Date: September 21, 2018
Meeting: SF Bay Restoration Authority
Location: San Francisco, CA
Supervisor sought reimbursement from the County for meetings that he attended in
his capacity as a County Supervisor during the month of September 2018.
October 16, 2018 BOS Minutes 56
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lisa Chow, (925)
521-7100
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
C. 7
To:Board of Supervisors
From:Karen Mitchoff, District IV Supervisor
Date:October 16, 2018
Contra
Costa
County
Subject:ADOPT Resolution recognizing Assistant Chief James Libby's retirement from the California Highway Patrol
October 16, 2018 BOS Minutes 57
AGENDA ATTACHMENTS
Resolution No. 2018/527
MINUTES ATTACHMENTS
Signed Resolution No.
2018/527
October 16, 2018 BOS Minutes 58
In the matter of:Resolution No. 2018/527
In the matter of honoring Assistant Chief James Libby upon his retirement from the California Highway Patrol.
WHEREAS, the calling to be a peace officer is one of the most esteemed vocations of
public service, and individuals who accept this calling are worthy of the highest
respect and honor the nation, the state, and the community can provide; and
WHEREAS, Assistant Chief James Libby is retiring from the California Highway Patrol
after over 29 years of dedicated service; and
WHEREAS, Mr. James Libby entered the California Highway Patrol Academy on May
15, 1989, and upon graduation, reported to the West Los Angeles Area where he
worked as a Traffic Officer, before transferring to Oakland Area where he continued
his service to the public as a Traffic Officer; and
WHEREAS, Officer Libby transferred to the Golden Gate Division Investigative Services
Unit on July 1, 1995, and became a founding member of the Statewide Cargo Theft
Interdiction Program, a vehicle theft investigator in Contra Costa County, a founding
member of the Golden Gate Division Warrant Service Team and assisted in
developing the Golden Gate Division Salvage Vehicle Inspection Program; and
WHEREAS, Officer Libby transferred back to the Oakland Area on March 2, 2005, and
served as an acting sergeant; and
WHEREAS, Officer Libby promoted to the rank of Sergeant on July 1, 2005, and
transferred to the Dublin Area where he worked as a field sergeant and garnered the
respect of his subordinates and peers as a compassionate and fair leader; and
WHEREAS, Sergeant Libby promoted to the rank of Lieutenant on September 1, 2011,
and remained in the Dublin Area where he was able to continuing serving in Alameda
County, where, as a Department leader was known for his dedication, expertise, and
professionalism, and became an Executive Officer in the newly formed Golden Gate
Division Special Response Team; and
WHEREAS, Lieutenant Libby promoted to the rank of Captain on July 1, 2014, and
served as the Golden Gate Division Special Services Commander and as an
unwavering leader, oversaw Golden Gate Division’s Air Operations, Commercial
Operations, Multidisciplinary Accident Investigation Team (MAIT), K9 Unit,
Investigative Services Unit, and Motor Carrier Safety Unit and oversaw the civil
disturbance plan for CHP response to Super Bowl 50; and
WHEREAS, Captain Libby was appointed as Deputy Director of the California State
Lottery Security/Law Enforcement Division on May 1, 2016, and represented the
CHP as a versatile and knowledgeable law enforcement leader, as he oversaw
California State Lottery physical security, claims investigations, draw management
October 16, 2018 BOS Minutes 59
and other duties to ensure the integrity of lottery operations; and
WHEREAS, Captain Libby was promoted to the rank of Assistant Chief on April 1,
2017, and transferred to Golden Gate Division where he mentored commanders within
Golden Gate Division and spearheaded the Contra Costa County Freeway Security
Network; and
NOW, THEREFORE BE IT RESOLVED, that the Contra Costa County Board of Supervisors does hereby
honor and congratulate Assistant Chief James Libby on the occasion of his retirement from the California
Highway Patrol.
___________________
KAREN MITCHOFF
Chair, District IV Supervisor
______________________________________
JOHN GIOIA CANDACE ANDERSEN
District I Supervisor District II Supervisor
______________________________________
DIANE BURGIS FEDERAL D. GLOVER
District III 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: October 16, 2018
David J. Twa,
By: ____________________________________, Deputy
October 16, 2018 BOS Minutes 60
C.
October 16, 2018 BOS Minutes 61
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lia Bristol, (925)
521-7100
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
C. 8
To:Board of Supervisors
From:Karen Mitchoff, District IV Supervisor
Date:October 16, 2018
Contra
Costa
County
Subject:Recognizing October 2018 as Diaper Need Awareness Month
October 16, 2018 BOS Minutes 62
AGENDA ATTACHMENTS
Resolution No. 2018/528
MINUTES ATTACHMENTS
Signed Resolution No.
2018/528
October 16, 2018 BOS Minutes 63
In the matter of:Resolution No. 2018/528
In the matter of Recognizing October 2018 as Diaper Need Awareness Month
Whereas, Diaper Need, the condition of not having a sufficient supply of clean diapers
to ensure that infants and toddlers are clean, healthy and dry, can adversely affect the
health and welfare of infants, toddlers and their families; and
Whereas, national surveys report that one in three mothers experience diaper need at
some time while their children are less than three years of age and forty-eight percent
of families delay changing a diaper to extend their supply; and
Whereas, a newborn infant can go through up to twelve diapers a day and the average
infant or toddler requires an average of at least 50 diaper changes per week over three
years; and
Whereas, for families in the lowest income quintile, diapers can account for 14% of a
monthly budget, therefore obtaining a sufficient supply of diapers can cause economic
hardship to families; and
Whereas, diapers can be purchased with TANF benefits, yet only 27% of families
with children in poverty receive TANF; and
Whereas, costing as much as $150.00 a month, when a family must decide between
utilities, food or diapers, many children are left to wear a soiled diaper until it falls
apart, wear a paper towel at home or wear a “used” diaper, one where the stool was
removed and is still dry enough to reuse; and
Whereas, more than 874 emergency room and inpatient hospital visits of conditions
known to be caused by diaper need were reported in 2017 in Contra Costa County;
and
Whereas, a supply of diapers is generally an eligibility requirement for infant and
toddlers to participate in childcare and early education programs, and therefore a
barrier to employment; and
Whereas, addressing Diaper Need can lead to economic opportunity for the state’s
low-income families and can lead to improved health for families and their
communities; and
Whereas, Sweet Beginnings Family Resource Center is working towards being
recognized as the 20th Diaper Bank in California; and
Whereas, Sweet Beginnings partners with the Women, Infant and Children (WIC)
aegncy in Contra Costa, as well as First 5 Contra Costa, to supply 5000 diapers a
month to their families; and
October 16, 2018 BOS Minutes 64
Whereas, SupplyBank.Org’s Diaper Kit Assistance distributes 18,000 Talk.Read.Sing
branded diapers and 36,000 baby wipes monthly through the Concord Women, Infant
and Children (WIC) agency in Contra Costa County; and
Whereas, supplying diapers helps provide economic stability for families in Contra
Costa.
Now, Therefore Be It Resolved that the Board of Supervisors of Contra Costa County does hereby proclaim
October, 2018 as Diaper Need Awareness Month, and encourages all residents to donate to diaper banks,
diaper drives, and those organizations that distribute diapers to families in need to help alleviate diaper
need.
___________________
KAREN MITCHOFF
Chair, District IV Supervisor
______________________________________
JOHN GIOIA CANDACE ANDERSEN
District I Supervisor District II Supervisor
______________________________________
DIANE BURGIS FEDERAL D. GLOVER
District III 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: October 16, 2018
David J. Twa,
By: ____________________________________, Deputy
October 16, 2018 BOS Minutes 65
PR.1, C.8
October 16, 2018 BOS Minutes 66
RECOMMENDATION(S):
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc: Tasha Scott, Marcy Wilhelm, Gail Goyle
C. 9
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Proclaim October 21 – 27, 2018 as Lead Poisoning Prevention Week
October 16, 2018 BOS Minutes 67
AGENDA ATTACHMENTS
Resolution No. 2018/525
MINUTES ATTACHMENTS
Signed Resolution No.
2018/525
October 16, 2018 BOS Minutes 68
In the matter of:Resolution No. 2018/525
PROCLAIMING OCTOBER 21 – 27, 2018 AS “CHILDHOOD LEAD POISONING PREVENTION WEEK”
WHEREAS, Contra Costa County recognizes the importance of a safe environment
including healthy homes for all of our children and families; and
WHEREAS, an important part of ensuring a safe environment is preventing Contra
Costa children from being poisoned by lead in their homes and community; and
WHEREAS, lead poisoning often has few or no early visible symptoms and often
goes undetected; and
WHEREAS, lead poisoning can have lifelong effects, especially for children, ranging
from cognitive and behavioral problems to delayed growth and learning disabilities;
and
WHEREAS, Contra Costa children may be exposed to lead from deteriorated
lead-based paint and contaminated soil, and from other sources such as cultural and
consumer products, lead brought home from the workplace, and historic
environmental contamination; and
WHEREAS, the State of California has recognized that children are harmed by even
low levels of lead and has enabled the Contra Costa Lead Poisoning Prevention
Project to offer services to these children; and
WHEREAS, to keep our children safe and healthy, all children under the age of six
should be assessed for lead exposure, at-risk children should receive blood tests for
lead; and lead hazards must be identified and removed from a child’s environment;
and
WHEREAS, lead poisoning is preventable through greater awareness and elimination
of the many sources of lead; using lead-safe work practices when disturbing
lead-based paint; and ensuring that children have a healthy diet and access to health
care; and
WHEREAS, Contra Costa County’s Lead Poisoning Prevention Project (LPPP) has
been working effectively since 1993 to reduce the number of lead poisoned children
in Contra Costa through case management, outreach and education, and early
intervention services; and
WHEREAS, some of the nearly 10,000 Contra Costa children screened each year are
still exposed to the dangers of lead;
.
NOW, THEREFORE BE IT RESOLVED that the Board of Supervisors proclaims October 21 - 27, 2018,
as Childhood Lead Poisoning Prevention Week in Contra Costa County, to prevent childhood lead
poisoning through increased community awareness and activities supporting the elimination of lead from
our homes, consumer products and other sources, and the environment.
___________________
KAREN MITCHOFF
Chair, District IV Supervisor
______________________________________
JOHN GIOIA CANDACE ANDERSEN
District I Supervisor District II Supervisor
October 16, 2018 BOS Minutes 69
District I Supervisor District II Supervisor
______________________________________
DIANE BURGIS FEDERAL D. GLOVER
District III 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: October 16, 2018
David J. Twa,
By: ____________________________________, Deputy
October 16, 2018 BOS Minutes 70
C.9
October 16, 2018 BOS Minutes 71
RECOMMENDATION(S):
ACCEPT resignation of Victor Lecha, DECLARE a vacancy in the District IV-A Seat on the Alcohol and Other Drugs
Advisory Board, and Direct the Clerk of the Board to post the
vacancy, as recommended by Supervisor Karen Mitchoff.
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 the findings and recommendations to the Contra Costa Health Services Department,
the Board of Supervisors and the communities they serve. The
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lisa Chow, (925)
521-7100
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 10
To:Board of Supervisors
From:Karen Mitchoff, District IV Supervisor
Date:October 16, 2018
Contra
Costa
County
Subject:ACCEPT Resignation of Victor Lecha for the District IV-A Seat on the Alcohol and Other Drugs Advisory Board
October 16, 2018 BOS Minutes 72
BACKGROUND: (CONT'D)
Alcohol and Other Drugs Advisory Board works in collaboration with the Alcohol and Other Drug 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.
October 16, 2018 BOS Minutes 73
RECOMMENDATION(S):
ACCEPT the resignation of Andrea Bailey, DECLARE a vacancy of the Business Seat 1 on the North
Richmond Municipal Advisory Council, and DIRECT the Clerk of the Board to post the vacancy, as
recommended by Supervisor Gioia.
FISCAL IMPACT:
None.
BACKGROUND:
The North Richmond Municipal Advisory Council advises the Board of Supervisors on issues and concerns
affecting the unincorporated community of North Richmond.
Ms. Bailey has served on the North Richmond Municipal Advisory Council in District 1 and now wishes to
resign her seat effective immediately for personal reasons.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Robert Rogers
5102318688
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 11
To:Board of Supervisors
From:John Gioia, District I Supervisor
Date:October 16, 2018
Contra
Costa
County
Subject:ACCEPT the resignation of Andrea Bailey, DECLARE a vacancy of the Business Seat 1 on the North Richmond
Municipal Advisory Council
October 16, 2018 BOS Minutes 74
RECOMMENDATION(S):
APPOINT the following individuals to seats on the Emergency Medical Care Committee (EMCC) for a
two-year term with an expiration date of September 30, 2020:
B3 American Red Cross, Bay Area Chapter Representative: Jennifer Lucas, Concord, CA 94521
B9 Hospital Council – East Bay, Representative: James Lambert, Antioch, CA 94531
C1 Ambulance Providers (Contra Costa 9-1-1 Service Contract) Representative: John Duggan, San Ramon, CA
94583
C2 Air Medical Transportation Provider Representative: Michele Bell, Concord, CA 94520
C3 EMS Training Institution Representative: Cameron Metzger, Concord, CA 94518
REAPPOINT the following individuals to seats on the Emergency Medical Care Committee (EMCC) for a
two year term with an expiration date of September 30, 2020:
B1 Alameda-Contra Costa Medical Association Representative: Ellen Leng, Walnut Creek, CA 94598
B2 American Heart Association Representative: Elaina Petrucci Gunn, Oakland, CA 94612
B4 California Highway Patrol Representative: Ara Gregorian, Martinez, CA 94553
B5 Communications Center Managers’ Association Representative: Denise Pangelinan, San Ramon, CA 94583
B6 Contra Costa Fire Chiefs’ Association Representative: Terence Carey, Concord, CA 94520
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Tasha Scott, Marcy Wilhelm, Rachel Morris
C. 12
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Appointments and Re-Appointments to the Emergency Medical Care Committee
October 16, 2018 BOS Minutes 75
RECOMMENDATION(S): (CONT'D)
B7 Contra Costa Police Chiefs’ Association Representative: Jon King, Moraga, CA 94556
B8 Emergency Nurses Association-East Bay Chapter Representative: David Samuelson, Walnut Creek, CA
94597
B10 Public Managers’ Association Representative: Gary Napper, Clayton, CA 94517
B11 Trauma Center (Contra Costa Contract) Representative: Kacey Hansen, Walnut Creek, CA 94598
B12 Contra Costa Office of the Sheriff Representative: Jason Vorhauer, Martinez, CA 94553
Ex Officio Representative: Pat Frost, Martinez, CA 94553
Ex Officio Representative: David Goldstein, Martinez, CA 94553
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 Emergency Medical Services (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.
CONSEQUENCE OF NEGATIVE ACTION:
If this Board Order is not approved, none of the requested positions on the EMCC will be filled.
ATTACHMENTS
October 16, 2018 BOS Minutes 76
RECOMMENDATION(S):
APPOINT Roosevelt Gipson, Jr. to the Education seat and Dr. Aaron Bryant to the Community seat # 3 as
recommended by the Advisory Council on Equal Employment Opportunity and the Hiring Outreach
Oversight Committee for terms ending on November 30, 2019.
FISCAL IMPACT:
None
BACKGROUND:
In 2013, Internal Operations Committee (IOC) reviewed Board Resolution Nos. 2011/497 and 2011/498,
which stipulate that applicants for At Large/Non Agency-Specific seats on specified bodies are to be
interviewed by a Board subcommittee. The Resolutions further permit a Board Committee to select a
screening committee to assist in interviewing applicants for appointment for certain bodies, including the
ACEEO.
CONSEQUENCE OF NEGATIVE ACTION:
The ACEEO will not be representative of the communities we serve.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:See Addendum
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Antoine Wilson,
925-335-1455
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 13
To:Board of Supervisors
From:David Twa, County Administrator
Date:October 16, 2018
Contra
Costa
County
Subject:Appoint new Members to the Advisory Council on Equal Employment Opoprtunity
October 16, 2018 BOS Minutes 77
CLERK'S ADDENDUM
Corrected to read, Dr. Bryant was appointed to Community Seat 4
ATTACHMENTS
Roosevelt Gibson Application
Dr. Aaron Bryant Application
October 16, 2018 BOS Minutes 78
October 16, 2018 BOS Minutes 79
October 16, 2018 BOS Minutes 80
October 16, 2018 BOS Minutes 81
October 16, 2018 BOS Minutes 82
October 16, 2018 BOS Minutes 83
October 16, 2018 BOS Minutes 84
October 16, 2018 BOS Minutes 85
October 16, 2018 BOS Minutes 86
October 16, 2018 BOS Minutes 87
October 16, 2018 BOS Minutes 88
October 16, 2018 BOS Minutes 89
October 16, 2018 BOS Minutes 90
October 16, 2018 BOS Minutes 91
October 16, 2018 BOS Minutes 92
RECOMMENDATION(S):
1. ADOPT Resolution No. 2018/518 to reappoint Supervisor John Gioia as the Board of Supervisors
representative and Supervisor Karen Mitchoff as the Board's alternate representative on the California State
Association Association of Counties (CSAC) Board of Directors to new terms beginning on November 26,
2018 and ending on November 30, 2019; and to restate the appointment of Board members and other
individuals to serve on Board committees, special county committees, and regional boards/ committees/
commissions for 2018, some of which include additional compensation in the form of stipend.
2. INDICATE that the attached Resolution No. 2018/518 supersedes in its entirety Resolution No.
2018/207, which was adopted by the Board of Supervisors on June 5, 2018.
3. DIRECT staff to update on the County website the single Fair Political Practices Commission (FPPC)
Form 806, which lists all the paid appointed positions on committees, boards, or commissions for members
of the Board of Supervisors.
FISCAL IMPACT:
The recommendation results in no fiscal impact to the County. CSAC board members are paid no stipends.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Julie DiMaggio Enea
(925) 335-1077
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: October 16, 2018
, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 14
To:Board of Supervisors
From:Karen Mitchoff, District IV Supervisor
Date:October 16, 2018
Contra
Costa
County
Subject:APPOINTMENTS TO THE CALIFORNIA STATE ASSOCIATION OF COUNTIES BOARD OF DIRECTORS
October 16, 2018 BOS Minutes 93
BACKGROUND:
The terms of office of the CSAC Board of Directors seat and its Alternate will expire on November 26,
2018. The primary purpose of CSAC is to represent county government before the California
Legislature, administrative agencies and the federal government. CSAC places a strong emphasis on
educating the public about the value and need for county programs and services. CSAC’s long-term
objective is to significantly improve the fiscal health of all California counties so they can adequately
meet the demand for vital public programs and services. All 58 California counties are dues-paying
members of the association.
Under provisions of the CSAC Constitution, members of the Board of Directors and alternates are
nominated by their respective boards of supervisors and appointed by the CSAC Executive Committee
to a one-year terms of office commencing with the first day of the CSAC annual conference. This year,
that will be on Tuesday, November 27, 2018. Any member of your Board of Supervisors is eligible for
the directorship. Attached as Exhibit A is the 2018 list of CSAC Directors.
CSAC holds two annual meetings for its membership: the Spring Legislative Conference in Sacramento
and the Annual Meeting in November. CSAC’s Board of Directors holds its first meeting of each year at
the association’s annual conference. Thus, it is important that the Board of Supervisors send its newly
appointed board representative to this first meeting. The new Board of Directors will meet at the annual
conference, first by caucus (urban, suburban, and rural) to nominate CSAC officers and Executive
Committee members, and again as a full Board to elect the 2019 Executive Committee and to conduct
other business. Under the CSAC Constitution, Executive Committee members are elected from the
membership of the Board of Directors.
FPPC Form 806
In April 2012, the Fair Political Practices Commission (FPPC) adopted Regulation § 18705.5, which
permits a Supervisor to vote on his/her own appointment to a body or board paying a salary or stipend
for service if all of the following conditions are met:
1. the appointment is to a committee, board, or commission of a public agency, a special district, a
joint powers agency or authority, or a metropolitan planning organization; and
2. State law, a local ordinance, or a joint powers agreement requires the Board to appoint; and
3. the Board adopts and posts on its website, a list of each appointed position for which
compensation is paid, the salary or stipend for the position, the name of the appointee, the name
of the alternate, if any, and the term of the appointment.
Form 806 is used to report additional compensation that officials receive when appointing themselves to
positions on committees, boards, or commissions of a public agency, special district, and joint powers
agency or authority. Each agency must post on its website a single Form 806, listing all of the paid
appointed positions. When there is a change in compensation or a new appointment, the Form 806 is
updated to reflect the change. The form must be updated promptly as changes occur.
AGENDA ATTACHMENTS
Resolution No. 2018/518
Attachment I to Resolution No. 2018/518_List by Committee Type
Attachment II to Resolution No. 2018/518_Alpha List
Exhibit A_2018 CSAC Board Roster
MINUTES ATTACHMENTS
Signed: Resolution No. 2018/518
October 16, 2018 BOS Minutes 94
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/518
IN THE MATTER OF ENSURING CONTINUED REPRESENTATION ON THE CALIFORNIA STATE ASSOCIATION OF
COUNTIES BOARD OF DIRECTORS AND UPDATING BOARD MEMBER ASSIGNMENTS TO 2018 BOARD
COMMITTEES, SPECIAL COUNTY COMMITTEES, AND REGIONAL ORGANIZATIONS
WHEREAS the primary purpose of the California State Association of Counties (CSAC) is to represent county government
before the California Legislature, administrative agencies and the federal government; and
WHEREAS, CSAC places a strong emphasis on educating the public about the value and need for county programs and services;
and
WHEREAS CSAC’s long-term objective is to significantly improve the fiscal health of all California counties so they can
adequately meet the demand for vital public programs and services; and.
WHEREAS CSAC is governed by a 58-member Board of Directors, with one representative from each member county,
designated as either urban, suburban or rural; and
WHEREAS, the terms of office of the Board of Supervisors' appointees to the CSAC Board of Directors will expire on
November 26, 2018; and
WHEREAS, the recommended appointments will ensure continued representation of the Board of Supervisors on the myriad
issues of significance to Contra Costa County; and
WHEREAS adoption of a new Master Resolution with a complete roster of all appointments is required by Board policy
whenever terms expire or new appointments are made; and
WHEREAS, after any new appointments or reappointments are made, when there is a change in compensation for any
appointment, or where there is a change in the number of meetings of the board or committee to which an appointment is made,
the Fair Political Practices Commission requires the County to update and post on the County’s website the County’s Report of
Public Official Appointments, Form 806;
NOW, THEREFORE, THE BOARD OF SUPERVISORS RESOLVES TO:
1. REAPPOINT Supervisor John Gioia as the Board of Supervisors representative and Supervisor Karen Mitchoff as the Board's
alternate representative on the California State Association Association of Counties Board of Directors to new terms beginning
on November 26, 2018 and ending on November 30, 2019.
2. AFFIRM the appointment of the Board members and other individuals to serve on Board committees, special county
committees and regional boards / committees / commissions as specified in the Master List (see Attachment I) as Type I for
Board Standing Committees, Type II for Other Internal Committees, Type III for Regional Bodies, Type IV for Special/Restricted
seats, and Type V for Board Ad Hoc Committees.
3. INDICATE that this Resolution No. 2018/518 supersedes in its entirety Resolution No. 2018/270, which was adopted by the Board of Supervisors on June 5, 2018.
October 16, 2018 BOS Minutes 95
4. UPDATE the County's Report of Public Official Appointments, Form 806, to reflect the appointments on the adopted Master
List for 2018 and post it on the County's website.
Contact: Julie DiMaggio Enea (925)
335-1077
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: October 16, 2018
, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
October 16, 2018 BOS Minutes 96
October 16, 2018 BOS Minutes 97
October 16, 2018 BOS Minutes 98
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationI Airport Committee, ChairDiane Burgis 12/31/2018NO STIPENDI Airport Committee, Vice ChairKaren Mitchoff 12/31/2018NO STIPENDI Family & Human Services Committee, ChairCandace Andersen 12/31/2018NO STIPENDI Family & Human Services Committee, Vice ChairJohn Gioia 12/31/2018NO STIPENDI Finance Committee, ChairKaren Mitchoff12/31/2018NO STIPENDI Finance Committee, Vice ChairJohn Gioia 12/31/2018NO STIPENDI Hiring Outreach & Oversight Committee, ChairCandace Andersen 12/31/2018NO STIPENDI Hiring Outreach & Oversight Committee, Vice‐ChairFederal D. Glover 12/31/2018NO STIPENDI Internal Operations Committee, ChairDiane Burgis 12/31/2018NO STIPENDI Internal Operations Committee, Vice ChairCandace Andersen 12/31/2018NO STIPENDI Legislation Committee, ChairKaren Mitchoff12/31/2018NO STIPENDI Legislation Committee, Vice ChairDiane Burgis 12/31/2018NO STIPENDI Public Protection, ChairJohn Gioia 12/31/2018NO STIPENDI Public Protection, Vice ChairFederal D. Glover 12/31/2018NO STIPENDI Transportation, Water & Infrastructure Committee, ChairKaren Mitchoff12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 1October 16, 2018October 16, 2018BOS Minutes99
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationI Transportation, Water & Infrastructure Committee, Vice ChairCandace Andersen 12/31/2018NO STIPENDII Bay Area Counties CaucusKaren Mitchoff12/31/2018NO STIPENDII Bay Area Counties Caucus, AlternateCandace Andersen 12/31/2018NO STIPENDII Bay Area Regional Interoperable Communications System (BayRICS) AuthorityMike Casten 12/31/2018NO STIPENDII BayRICS Authority, AlternateElise Warren 12/31/2018NO STIPENDII California Identification System Remote Access Network Board (Cal‐ID RAN Board)Diane Burgis 12/31/2018NO STIPENDII Central Contra Costa Solid Waste AuthorityCandace Andersen UnspecifiedSTIPEND of $50/meeting; max of 2 paid/monthII Central Contra Costa Solid Waste AuthorityKaren MitchoffUnspecifiedSTIPEND of $50/meeting; max of 2 paid/monthII Contra Costa Family Justice AllianceDiane Burgis 12/31/2018NO STIPENDII Contra Costa Health Plan Joint Conference CommitteeDiane Burgis 12/31/2018NO STIPENDII Contra Costa Health Plan Joint Conference CommitteeFederal D. Glover 12/31/2018NO STIPENDII Dougherty Valley Oversight CommitteeDiane Burgis 12/31/2018NO STIPENDII Dougherty Valley Oversight CommitteeCandace Andersen 12/31/2018NO STIPENDII East Bay Regional Communication System (EBRCS) Authority Governing BoardCandace Andersen 12/31/2018NO STIPENDIIEast Bay Regional Communication System (EBRCS) Authority Governing Board, AlternateKaren Mitchoff12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 2October 16, 2018October 16, 2018BOS Minutes100
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII East Contra Costa County Habitat Conservancy, Governing BoardDiane Burgis 12/31/2018NO STIPENDII East Contra Costa County Habitat Conservancy, Governing Board, AlternateFederal D. Glover 12/31/2018NO STIPENDII East Contra Costa Regional Fee & Finance AuthorityDiane Burgis 12/31/2018NO STIPENDII East Contra Costa Regional Fee & Finance Authority, AlternateFederal D. Glover 12/31/2018NO STIPENDII East County Water Management AssociationDiane Burgis 12/31/2018STIPEND of $170/meeting; max 6 per monthIIEast County Water Management Association, AlternateFederal D. Glover 12/31/2018STIPEND of $170/meeting; max 6 per monthII eBART (Bay Area Rapid Transit) Partnership Policy Advisory CommitteeFederal D. Glover 12/31/2018NO STIPENDII eBART (Bay Area Rapid Transit) Partnership Policy Advisory CommitteeDiane Burgis 12/31/2018NO STIPENDII First 5 Children and Families Commission MemberDiane Burgis 12/31/2018NO STIPENDII First 5 Children and Families Commission Alternate MemberCandace Andersen 12/31/2018NO STIPENDII Hazardous Waste Management Facility Allocation CommitteeCandace Andersen UnspecifiedSTIPEND of $150 per meeting. II Hazardous Waste Management Facility Allocation Committee, AlternateKaren MitchoffUnspecifiedSTIPEND of $150 per meeting. II Medical Services Joint Conference Committee, ChairFederal D. Glover 12/31/2018NO STIPENDII Medical Services Joint Conference Committee, Vice ChairJohn Gioia 12/31/2018NO STIPENDII North Richmond Waste and Recovery Mitigation Fee CommitteeJohn Gioia 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 3October 16, 2018October 16, 2018BOS Minutes101
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII North Richmond Waste and Recovery Mitigation Fee Committee, AlternateRobert Rogers 12/31/2018NO STIPENDII Open Space/Parks & East Bay Regional Parks District Liaison Committee, ChairDiane Burgis 12/31/2018NO STIPENDII Open Space/Parks & East Bay Regional Parks District Liaison Committee, Vice ChairFederal D. Glover 12/31/2018NO STIPENDII Pleasant Hill BART/Contra Costa Centre Joint Powers Authority Board of TrusteesKaren MitchoffUnspecifiedNO STIPENDII Pleasant Hill BART/Contra Costa Centre Joint Powers Authority Board of TrusteesCandace Andersen UnspecifiedNO STIPENDII State Route 4 Bypass AuthorityDiane Burgis 12/31/2018NO STIPENDII State Route 4 Bypass Authority, AlternateFederal D. Glover 12/31/2018NO STIPENDII SWAT (Southwest Area Transportation Committee)Candace Andersen 12/31/2018NO STIPENDII SWAT, AlternateKaren Mitchoff 12/31/2018NO STIPENDII TRAFFIX (Measure J Traffic Congestion Relief Agency)Candace Andersen 12/31/2018NO STIPENDII TRAFFIX (Measure J Traffic Congestion Relief Agency), AlternateKaren Mitchoff12/31/2018NO STIPENDII TRANSPAC (Central County Transportation Partnership and Cooperation)Karen Mitchoff12/31/2018NO STIPENDII TRANSPAC, AlternateCandace Andersen 12/31/2018NO STIPENDII TRANSPLAN (East County Transportation Planning)Diane Burgis 12/31/2018NO STIPENDII TRANSPLAN, AlternateFederal D. Glover 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 4October 16, 2018October 16, 2018BOS Minutes102
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII Tri‐Valley Transportation CouncilCandace Andersen 12/31/2018NO STIPENDII Urban Counties of CaliforniaFederal D. Glover 12/31/2019NO STIPENDII Urban Counties of California, AlternateKaren Mitchoff 12/31/2019NO STIPENDII WCCTAC (West County Transportation Advisory Committee)John Gioia 12/31/2018NO STIPENDII WCCTAC, AlternateFederal D. Glover 12/31/2018NO STIPENDII West Contra Costa Integrated Waste Management AuthorityJohn Gioia UnspecifiedSTIPEND of $50 per meeting. II West Contra Costa Integrated Waste Management Authority, AlternateFederal D. Glover UnspecifiedSTIPEND of $50 per meeting. IIIBay Area Air Quality Management District Board of DirectorsKaren Mitchoff1/20/2020Per diem of $100/meeting + travel exp; max $6,000III Bay Area Air Quality Management District Board of DirectorsJohn Gioia 6/17/2021Per diem of $100/meeting + travel exp; max $6,000III Central Contra Costa Transit Authority (CCCTA) Board of DirectorsCandace Andersen 5/1/2019STIPEND of $100 per meeting; up to $200 monthIII Central Contra Costa Transit Authority (CCCTA) Board of Directors, AlternateKaren Mitchoff 5/1/2019STIPEND of $100 per meeting; up to $200 monthIII Contra Costa Transportation Authority Board of Commissioners (Seat 1)Federal D. Glover1/31/2019STIPEND of $100 per meeting; up to $400 monthIII Contra Costa Transportation Authority Board of Commissioners (Seat 2)Karen Mitchoff 12/31/2018STIPEND of $100 per meeting; up to $400 monthIII Contra Costa Transportation Authority Board of Commissioners, Alternate (Seat 1)Candace Andersen 1/31/2019STIPEND of $100 per meeting; up to $400 monthIIIContra Costa Transportation Authority Board of Commissioners, Alternate (Seat 2)John Gioia 12/31/2018STIPEND of $100 per meeting; up to $400 monthNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 5October 16, 2018October 16, 2018BOS Minutes103
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationIII Contra Costa Transportation Authority Board of Commissioners, Second Alternate (Seat 1)John Gioia 1/31/2019STIPEND of $100 per meeting; up to $400 monthIII Contra Costa Transportation Authority Board of Commissioners, Third Alternate (Seat 1)Diane Burgis 1/31/2019STIPEND of $100 per meeting; up to $400 monthIII Local Agency Formation CommissionCandace Andersen 5/2/2022STIPEND of $150 per meeting. III Local Agency Formation CommissionFederal D. Glover 5/2/2022STIPEND of $150 per meeting. III Local Agency Formation Commission, AlternateDiane Burgis 5/4/2020STIPEND of $150 per meeting. III Marin Energy Authority (MCE) Board of DirectorsFederal D. Glover 12/31/2020NO STIPENDIII Marin Energy Authority (MCE) Board of Directors, AlternateJohn Gioia 12/31/2020NO STIPENDIII Metropolitan Transportation CommissionFederal D. Glover 2/1/2019STIPEND of $100/meeting; up to $500/month per agency.III Tri Delta Transit Authority, Board of Directors (Seat 1)Federal D. Glover 12/31/2018STIPEND of $100/monthIII Tri Delta Transit Authority, Board of Directors (Seat 2)Diane Burgis 12/31/2019STIPEND of $100/monthIVABAG Executive Board (Seat 1)Karen Mitchoff 6/30/2020STIPEND of $150 per meeting. IV ABAG Executive Board (Seat 2)Candace Andersen 6/30/2020STIPEND of $150 per meeting. IV ABAG Executive Board, Alternate 1John Gioia 6/30/2020STIPEND of $150 per meeting. IV ABAG Executive Board, Alternate 2Diane Burgis 6/30/2020STIPEND of $150 per meeting. IV ABAG Finance Authority for Nonprofit Corporations Board of Directors and its Executive Committee Karen Mitchoff 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 6October 16, 2018October 16, 2018BOS Minutes104
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationIVABAG Finance Authority for Nonprofit Corporations Board of Directors and its Executive Committee, First AlternateRussell Watts 12/31/2018NO STIPENDIVABAG Finance Authority for Nonprofit Corporations Board of Directors and its Executive Committee, Second AlternateBelinda Zhu 12/31/2018NO STIPENDIV ABAG General AssemblyKaren Mitchoff 12/31/2018NO STIPENDIV ABAG General Assembly, AlternateDiane Burgis 12/31/2018NO STIPENDIV ABAG Regional Planning CommitteeKaren MitchoffUnspecifiedSTIPEND of $150 per meeting. IV Bay Conservation & Development CommissionJohn Gioia UnspecifiedSTIPEND of $100 per meeting; max of 4 meetings.IV Bay Conservation & Development Commission, AlternateFederal D. Glover UnspecifiedSTIPEND of $100 per meeting; max of 4 meetings.IV CCCERA (Contra Costa County Employees Retirement Association) Board of TrusteesCandace Andersen 6/30/2020STIPEND of $100 per meeting.IV Contra Costa Countywide Redevelopment Successor Agency Oversight BoardFederal D. Glover UnspecifiedNO STIPENDIVCSAC (California State Association of Counties) Board of DirectorsJohn Gioia 11/30/2019NO STIPENDIV CSAC Board of Directors, AlternateKaren Mitchoff11/30/2019NO STIPENDIV Delta Diablo Sanitation District Governing BoardFederal D. Glover 12/31/2018STIPEND of $170 per meeting; max of 6 meetings.IV Delta Diablo Sanitation District Governing Board, AlternateKaren Mitchoff 12/31/2018STIPEND of $170 per meeting; max of 6 meetings.IV Delta Protection CommissionDiane Burgis 12/31/2018NO STIPENDIV Delta Protection Commission, AlternateKaren Mitchoff 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 7October 16, 2018October 16, 2018BOS Minutes105
ATTACHMENT I TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted by Committee Type)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationIV Law Library Board of TrusteesNolan Armstrong 12/31/2018NO STIPENDIV Mental Health CommissionDiane Burgis 12/31/2018NO STIPENDIV Mental Health Commission, AlternateCandace Andersen 12/31/2018NO STIPENDIV Sacramento‐San Joaquin Delta Conservancy BoardKaren Mitchoff UnspecifiedNO STIPENDIV Sacramento‐San Joaquin Delta Conservancy Board, AlternateRyan Hernandez UnspecifiedNO STIPENDV Industrial Safety Ordinance/Community Warning System Ad Hoc CommitteeJohn Gioia UnspecifiedNO STIPENDV Industrial Safety Ordinance/Community Warning System Ad Hoc CommitteeFederal D. Glover UnspecifiedNO STIPENDVNorthern Waterfront Economic Development Ad Hoc CommitteeFederal D. Glover UnspecifiedNO STIPENDV Northern Waterfront Economic Development Ad Hoc CommitteeDiane Burgis UnspecifiedNO STIPENDV Sustainability Ad Hoc Committee, ChairJohn Gioia UnspecifiedNO STIPENDV Sustainability Ad Hoc Committee, Vice ChairFederal D. Glover UnspecifiedNO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 8October 16, 2018October 16, 2018BOS Minutes106
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationIV ABAG Executive Board (Seat 1)Karen Mitchoff 6/30/2020STIPEND of $150 per meeting. IV ABAG Executive Board (Seat 2)Candace Andersen 6/30/2020STIPEND of $150 per meeting. IV ABAG Executive Board, Alternate 1John Gioia 6/30/2020STIPEND of $150 per meeting. IV ABAG Executive Board, Alternate 2Diane Burgis 6/30/2020STIPEND of $150 per meeting. IV ABAG Finance Authority for Nonprofit Corporations Board of Directors and its Executive Committee Karen Mitchoff 12/31/2018NO STIPENDIVABAG Finance Authority for Nonprofit Corporations Board of Directors and its Executive Committee, First AlternateRussell Watts 12/31/2018NO STIPENDIVABAG Finance Authority for Nonprofit Corporations Board of Directors and its Executive Committee, Second AlternateBelinda Zhu 12/31/2018NO STIPENDIV ABAG General AssemblyKaren Mitchoff 12/31/2018NO STIPENDIV ABAG General Assembly, AlternateDiane Burgis 12/31/2018NO STIPENDIV ABAG Regional Planning CommitteeKaren Mitchoff UnspecifiedSTIPEND of $150 per meeting. I Airport Committee, ChairDiane Burgis 12/31/2018NO STIPENDI Airport Committee, Vice ChairKaren Mitchoff 12/31/2018NO STIPENDIII Bay Area Air Quality Management District Board of DirectorsKaren Mitchoff1/20/2020Per diem of $100/meeting + travel exp; max $6,000III Bay Area Air Quality Management District Board of DirectorsJohn Gioia 6/17/2021Per diem of $100/meeting + travel exp; max $6,000Note: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 1October 16, 2018October 16, 2018BOS Minutes107
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII Bay Area Counties CaucusKaren Mitchoff 12/31/2018NO STIPENDII Bay Area Counties Caucus, AlternateCandace Andersen 12/31/2018NO STIPENDII Bay Area Regional Interoperable Communications System (BayRICS) AuthorityMike Casten 12/31/2018NO STIPENDIV Bay Conservation & Development CommissionJohn Gioia UnspecifiedSTIPEND of $100 per meeting; max of 4 meetings.IV Bay Conservation & Development Commission, AlternateFederal D. Glover UnspecifiedSTIPEND of $100 per meeting; max of 4 meetings.II BayRICS Authority, AlternateElise Warren 12/31/2018NO STIPENDII California Identification System Remote Access Network Board (Cal‐ID RAN Board)Diane Burgis 12/31/2018NO STIPENDIV CCCERA (Contra Costa County Employees Retirement Association) Board of TrusteesCandace Andersen 6/30/2020STIPEND of $100 per meeting.II Central Contra Costa Solid Waste AuthorityCandace Andersen UnspecifiedSTIPEND of $50/meeting; max of 2 paid/monthII Central Contra Costa Solid Waste AuthorityKaren Mitchoff UnspecifiedSTIPEND of $50/meeting; max of 2 paid/monthIII Central Contra Costa Transit Authority (CCCTA) Board of DirectorsCandace Andersen 5/1/2019STIPEND of $100 per meeting; up to $200 monthIII Central Contra Costa Transit Authority (CCCTA) Board of Directors, AlternateKaren Mitchoff 5/1/2019STIPEND of $100 per meeting; up to $200 monthIV Contra Costa Countywide Redevelopment Successor Agency Oversight BoardFederal D. Glover UnspecifiedNO STIPENDIIContra Costa Family Justice AllianceDiane Burgis 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 2October 16, 2018October 16, 2018BOS Minutes108
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII Contra Costa Health Plan Joint Conference CommitteeDiane Burgis 12/31/2018NO STIPENDII Contra Costa Health Plan Joint Conference CommitteeFederal D. Glover 12/31/2018NO STIPENDIII Contra Costa Transportation Authority Board of Commissioners (Seat 1)Federal D. Glover 1/31/2019STIPEND of $100 per meeting; up to $400 monthIII Contra Costa Transportation Authority Board of Commissioners (Seat 2)Karen Mitchoff 12/31/2018STIPEND of $100 per meeting; up to $400 monthIIIContra Costa Transportation Authority Board of Commissioners, Alternate (Seat 1)Candace Andersen 1/31/2019STIPEND of $100 per meeting; up to $400 monthIII Contra Costa Transportation Authority Board of Commissioners, Alternate (Seat 2)John Gioia 12/31/2018STIPEND of $100 per meeting; up to $400 monthIII Contra Costa Transportation Authority Board of Commissioners, Second Alternate (Seat 1)John Gioia 1/31/2019STIPEND of $100 per meeting; up to $400 monthIIIContra Costa Transportation Authority Board of Commissioners, Third Alternate (Seat 1)Diane Burgis 1/31/2019STIPEND of $100 per meeting; up to $400 monthIV CSAC (California State Association of Counties) Board of DirectorsJohn Gioia 11/30/2019NO STIPENDIV CSAC Board of Directors, AlternateKaren Mitchoff 11/30/2019NO STIPENDIV Delta Diablo Sanitation District Governing BoardFederal D. Glover 12/31/2018STIPEND of $170 per meeting; max of 6 meetings.IVDelta Diablo Sanitation District Governing Board, AlternateKaren Mitchoff 12/31/2018STIPEND of $170 per meeting; max of 6 meetings.IV Delta Protection CommissionDiane Burgis 12/31/2018NO STIPENDIV Delta Protection Commission, AlternateKaren Mitchoff 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 3October 16, 2018October 16, 2018BOS Minutes109
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII Dougherty Valley Oversight CommitteeDiane Burgis 12/31/2018NO STIPENDII Dougherty Valley Oversight CommitteeCandace Andersen 12/31/2018NO STIPENDII East Bay Regional Communication System (EBRCS) Authority Governing BoardCandace Andersen 12/31/2018NO STIPENDII East Bay Regional Communication System (EBRCS) Authority Governing Board, AlternateKaren Mitchoff 12/31/2018NO STIPENDII East Contra Costa County Habitat Conservancy, Governing BoardDiane Burgis 12/31/2018NO STIPENDII East Contra Costa County Habitat Conservancy, Governing Board, AlternateFederal D. Glover12/31/2018NO STIPENDII East Contra Costa Regional Fee & Finance AuthorityDiane Burgis 12/31/2018NO STIPENDII East Contra Costa Regional Fee & Finance Authority, AlternateFederal D. Glover 12/31/2018NO STIPENDII East County Water Management AssociationDiane Burgis 12/31/2018STIPEND of $170/meeting; max 6 per monthII East County Water Management Association, AlternateFederal D. Glover 12/31/2018STIPEND of $170/meeting; max 6 per monthII eBART (Bay Area Rapid Transit) Partnership Policy Advisory CommitteeFederal D. Glover 12/31/2018NO STIPENDII eBART (Bay Area Rapid Transit) Partnership Policy Advisory CommitteeDiane Burgis 12/31/2018NO STIPENDI Family & Human Services Committee, ChairCandace Andersen 12/31/2018NO STIPENDI Family & Human Services Committee, Vice ChairJohn Gioia 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 4October 16, 2018October 16, 2018BOS Minutes110
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationI Finance Committee, ChairKaren Mitchoff 12/31/2018NO STIPENDI Finance Committee, Vice ChairJohn Gioia 12/31/2018NO STIPENDII First 5 Children and Families Commission Alternate MemberCandace Andersen 12/31/2018NO STIPENDII First 5 Children and Families Commission MemberDiane Burgis 12/31/2018NO STIPENDII Hazardous Waste Management Facility Allocation CommitteeCandace Andersen UnspecifiedSTIPEND of $150 per meeting. II Hazardous Waste Management Facility Allocation Committee, AlternateKaren Mitchoff UnspecifiedSTIPEND of $150 per meeting. I Hiring Outreach & Oversight Committee, ChairCandace Andersen 12/31/2018NO STIPENDI Hiring Outreach & Oversight Committee, Vice‐ChairFederal D. Glover 12/31/2018NO STIPENDI Internal Operations Committee, ChairDiane Burgis 12/31/2018NO STIPENDI Internal Operations Committee, Vice ChairCandace Andersen 12/31/2018NO STIPENDIV Law Library Board of TrusteesNolan Armstrong 12/31/2018NO STIPENDI Legislation Committee, ChairKaren Mitchoff 12/31/2018NO STIPENDI Legislation Committee, Vice ChairDiane Burgis 12/31/2018NO STIPENDIII Local Agency Formation CommissionCandace Andersen 5/2/2022STIPEND of $150 per meeting. Note: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 5October 16, 2018October 16, 2018BOS Minutes111
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationIII Local Agency Formation CommissionFederal D. Glover 5/2/2022STIPEND of $150 per meeting. III Local Agency Formation Commission, AlternateDiane Burgis 5/4/2020STIPEND of $150 per meeting. III Marin Energy Authority (MCE) Board of DirectorsFederal D. Glover 12/31/2020NO STIPENDIII Marin Energy Authority (MCE) Board of Directors, AlternateJohn Gioia 12/31/2020NO STIPENDII Medical Services Joint Conference Committee, ChairFederal D. Glover 12/31/2018NO STIPENDII Medical Services Joint Conference Committee, Vice ChairJohn Gioia 12/31/2018NO STIPENDIV Mental Health CommissionDiane Burgis 12/31/2018NO STIPENDIV Mental Health Commission, AlternateCandace Andersen 12/31/2018NO STIPENDIII Metropolitan Transportation CommissionFederal D. Glover 2/1/2019STIPEND of $100/meeting; up to $500/month per agency.IINorth Richmond Waste and Recovery Mitigation Fee CommitteeJohn Gioia 12/31/2018NO STIPENDII North Richmond Waste and Recovery Mitigation Fee Committee, AlternateRobert Rogers 12/31/2018NO STIPENDII Open Space/Parks & East Bay Regional Parks District Liaison Committee, ChairDiane Burgis 12/31/2018NO STIPENDII Open Space/Parks & East Bay Regional Parks District Liaison Committee, Vice ChairFederal D. Glover 12/31/2018NO STIPENDII Pleasant Hill BART/Contra Costa Centre Joint Powers Authority Board of TrusteesKaren Mitchoff UnspecifiedNO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 6October 16, 2018October 16, 2018BOS Minutes112
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII Pleasant Hill BART/Contra Costa Centre Joint Powers Authority Board of TrusteesCandace Andersen UnspecifiedNO STIPENDI Public Protection, ChairJohn Gioia 12/31/2018NO STIPENDI Public Protection, Vice ChairFederal D. Glover 12/31/2018NO STIPENDIV Sacramento‐San Joaquin Delta Conservancy BoardKaren Mitchoff UnspecifiedNO STIPENDIV Sacramento‐San Joaquin Delta Conservancy Board, AlternateRyan Hernandez UnspecifiedNO STIPENDII State Route 4 Bypass AuthorityDiane Burgis 12/31/2018NO STIPENDII State Route 4 Bypass Authority, AlternateFederal D. Glover 12/31/2018NO STIPENDII SWAT (Southwest Area Transportation Committee)Candace Andersen 12/31/2018NO STIPENDII SWAT, AlternateKaren Mitchoff 12/31/2018NO STIPENDII TRAFFIX (Measure J Traffic Congestion Relief Agency)Candace Andersen 12/31/2018NO STIPENDII TRAFFIX (Measure J Traffic Congestion Relief Agency), AlternateKaren Mitchoff12/31/2018NO STIPENDII TRANSPAC (Central County Transportation Partnership and Cooperation)Karen Mitchoff 12/31/2018NO STIPENDII TRANSPAC, AlternateCandace Andersen 12/31/2018NO STIPENDII TRANSPLAN (East County Transportation Planning)Diane Burgis 12/31/2018NO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 7October 16, 2018October 16, 2018BOS Minutes113
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationII TRANSPLAN, AlternateFederal D. Glover 12/31/2018NO STIPENDI Transportation, Water & Infrastructure Committee, ChairKaren Mitchoff 12/31/2018NO STIPENDI Transportation, Water & Infrastructure Committee, Vice ChairCandace Andersen 12/31/2018NO STIPENDIII Tri Delta Transit Authority, Board of Directors (Seat 1)Federal D. Glover 12/31/2018STIPEND of $100/monthIII Tri Delta Transit Authority, Board of Directors (Seat 2)Diane Burgis 12/31/2019STIPEND of $100/monthII Tri‐Valley Transportation CouncilCandace Andersen 12/31/2018NO STIPENDII Urban Counties of CaliforniaFederal D. Glover 12/31/2019NO STIPENDII Urban Counties of California, AlternateKaren Mitchoff 12/31/2019NO STIPENDII WCCTAC (West County Transportation Advisory Committee)John Gioia 12/31/2018NO STIPENDII WCCTAC, AlternateFederal D. Glover12/31/2018NO STIPENDII West Contra Costa Integrated Waste Management AuthorityJohn Gioia UnspecifiedSTIPEND of $50 per meeting. II West Contra Costa Integrated Waste Management Authority, AlternateFederal D. Glover UnspecifiedSTIPEND of $50 per meeting. V Industrial Safety Ordinance/Community Warning System Ad Hoc CommitteeJohn Gioia UnspecifiedNO STIPENDV Industrial Safety Ordinance/Community Warning System Ad Hoc CommitteeFederal D. Glover UnspecifiedNO STIPENDNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 8October 16, 2018October 16, 2018BOS Minutes114
ATTACHMENT II TO RESOLUTION NO. 2018/518CONTRA COSTA COUNTY BOARD OF SUPERVISORS COMMITTEE ASSIGNMENTS(Sorted Alphabetically by Committee)Type*Committee Name2018 AppointeeTerm ExpirationStipend InformationV Northern Waterfront Economic Development Ad Hoc CommitteeFederal D. Glover UnspecifiedNO STIPENDV Northern Waterfront Economic Development Ad Hoc CommitteeDiane Burgis UnspecifiedNO STIPENDV Sustainability Ad Hoc Committee, ChairJohn Gioia UnspecifiedNO STIPENDV Sustainability Ad Hoc Committee, Vice ChairFederal D. Glover UnspecifiedNO STIPENDTHE FOLLOWING ASSIGNMENTS ARE INACTIVEIII Regional Airport Planning CommitteeNote: Type I: Internal Standing Committees; Type II: Internal Appointments; Type III: Regional Appointments; Type IV: Special/Restricted Appointments; Type V: Ad Hoc CommitteesPage 9October 16, 2018October 16, 2018BOS Minutes115
CALIFORNIA STATE ASSOCIATION OF COUNTIES
Board of Directors
2018
SECTION COUNTY DIRECTOR
U Alameda County Scott Haggerty
R Alpine County Terry Woodrow
R Amador County Richard Forster
S Butte County Bill Connelly
R Calaveras County Michael Oliveira
R Colusa County Denise Carter
U Contra Costa County John Gioia
R Del Norte County Chris Howard
R El Dorado County Sue Novasel
U Fresno County Buddy Mendes
R Glenn County John Viegas
R Humboldt County Estelle Fennell
S Imperial County Raymond Castillo
R Inyo County Jeff Griffiths
S Kern County Zack Scrivner
R Kings County Craig Pedersen
R Lake County Jim Steele
R Lassen County Chris Gallagher
U Los Angeles County Mark Ridley-Thomas
R Madera County Tom Wheeler
S Marin County Damon Connolly
R Mariposa County Marshall Long
R Mendocino County Carre Brown
S Merced County Lee Lor
R Modoc County Patricia Cullins
R Mono County John Peters
S Monterey County Luis Alejo
S Napa County Diane Dillon
R Nevada County Ed Scofield
U Orange County Lisa Bartlett
S Placer County Jim Holmes
R Plumas County Lori Simpson
U Riverside County Chuck Washington
U Sacramento County Susan Peters
R San Benito County Jaime De La Cruz
U San Bernardino County James Ramos
U San Diego County Greg Cox
SECTION
U=Urban
S=Suburban
R=Rural
President: Leticia Perez, Kern
First Vice President: Virginia Bass, Humboldt
Second Vice President: Lisa Bartlett, Orange
Immediate Past President: Keith Carson, Alameda
October 16, 2018 BOS Minutes 116
U San Francisco City & County Malia Cohen
U San Joaquin County Bob Elliott
S San Luis Obispo County Lynn Compton
U San Mateo County Carole Groom
S Santa Barbara County Das Williams
U Santa Clara County Ken Yeager
S Santa Cruz County Bruce McPherson
S Shasta County Leonard Moty
R Sierra County Lee Adams
R Siskiyou County Ed Valenzuela
S Solano County Erin Hannigan
S Sonoma County James Gore
S Stanislaus County Vito Chiesa
R Sutter County Dan Flores
R Tehama County Robert Williams
R Trinity County Judy Morris
S Tulare County Steve Worthl ey
R Tuolumne County Sherri Brennan
U Ventura County Kelly Long
S Yolo County Jim Provenza
R Yuba County Doug Lofton
1/18
October 16, 2018 BOS Minutes 117
RECOMMENDATION(S):
REAPPOINT Rhonda Gehlke to the At Large #1 seat and Kathleen Jennings to the At Large #2 seat to new
terms ending on December 31, 2022, and APPOINT Nicole Kozicki to the At Large Alternate seat to
complete the unexpired term ending on December 31, 2020, on the Fish and Wildlife Committee.
FISCAL IMPACT:
No fiscal impact.
BACKGROUND:
The Internal Operations Committee interviewed Rhonda Gehlke, Kathleen Jennings, Nicole Kozicki, Bert
Mulchaey, and Joshua Porter for the At Large seats on the Fish and Wildlife Committee. Walter Pease
withdrew his candidacy and was not in attendance. Jill Wiseman and Madelaine Burgess were unable to
attend but were considered on the basis of their applications.
At the conclusion of the interviews, the Committee decided to recommend to the Board of Supervisors the
reappointment of Roni Gehlke and Kathleen Jennings to the At Large 1 and 2 seats, respectively, to new
terms ending on December 31, 2022, and the appointment of Nicole Kozicki to the At Large Alternate seat
to complete the unexpired term ending on December 31, 2020.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Julie DiMaggio Enea
(925) 335-1077
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc:
C. 15
To:Board of Supervisors
From:INTERNAL OPERATIONS COMMITTEE
Date:October 16, 2018
Contra
Costa
County
Subject:RECOMMENDATIONS FOR APPOINTMENT TO THE FISH AND WILDLIFE COMMITTEE
October 16, 2018 BOS Minutes 118
BACKGROUND: (CONT'D)
Copies of the candidate applications and other information considered by the IOC are attached.
ATTACHMENTS
Fish and Wildlife Committee Interview Materials
October 16, 2018 BOS Minutes 119
October 16, 2018 BOS Minutes 120
Application Review
The deadline to receive applications was October 1, 2018. Eight (8) applications were received
for the At-large seat vacancies. Those include applications from Madelaine Burgess, Nicole
Kozicki, Bert Mulchaey, Walter Pease, Joshua Porter and Jill Wiseman. Two incumbents,
Rhonda Gehlke (At-large Seat #1) and Kathleen Jennings (At-large Seat #2), applied as well.
During the current term, which began December 31, 2016, the At-large Seat #1 incumbent
attended 10 of 12 meetings and the At-large Seat #2 incumbent attended 9 of 12 meetings. All
eight (8) applications are included as attachments to this memo in alphabetical order. All
applicants have been invited to interview with the Internal Operations Committee on October 8,
2018.
Attachments:
x FWC Roster
x Applications:
Madelaine Burgess
Rhonda Gehlke
Kathleen Jennings
Nicole Kozicki
Bert Mulchaey
Walter Pease
Joshua Porter
Jill Wiseman
October 16, 2018 BOS Minutes 121
10/2/2018
FISH AND WILDLIFE COMMITTEE ROSTER
Appointment Date Term Expires
Judy Bendix (District 1)
Richmond
December 20, 2016 February 28, 2020
Susan Heckly (District II)
Pleasant Hill
February 13, 2018 February 28, 2022
Clark Dawson (District III)
Antioch
March 31, 2015 February 28, 2018
Brett Morris (District IV)
Walnut Creek
March 3, 2015 February 28, 2019
Daniel Pellegrini (District V)
Martinez
March 3, 2015 February 28, 2019
Roni Gehlke (At-Large 1)
Oakley
January 5, 2016 December 31, 2018
Kathleen Jennings (At-Large 2)
Concord
January 5, 2016 December 31, 2018
Jeff Skinner(At-Large 3)
Martinez
January 1, 2017 December 31, 2020
Heather Rosmarin (At-Large 4)
Pleasant Hill
January 1, 2017 December 31, 2020
Vacant (At-Large Alternate 1) January 1, 2017 December 31, 2021 October 16, 2018 BOS Minutes 122
October 16, 2018 BOS Minutes 123
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RECOMMENDATION(S):
APPROVE Appropriation Adjustment No. 5013 authorizing the transfer of appropriations in the amount of
$106,000 from Plant Acquisition-Sheriff Coroner (0111) to Sheriff Detention (0300) for the purchase and
installation of flooring for the Martinez Detention Facility.
FISCAL IMPACT:
This action increases appropriations in Sheriff Detention (0300) and decreases appropriations in Plant
Acquisition-Sheriff Coroner (0111) by $106,000. No Net County Cost.
BACKGROUND:
The Martinez Detention Facility opened in 1981 and remains the sole point of intake for all persons
incarcerated in Contra Costa County. The main hallway that leads from the intake booking area up to the
general population housing units is covered in carpeting that has not been replaced in over 15 years. This
hallway is a heavy traffic area and the carpet is very well worn. The current carpet requires frequent
cleaning and due to its condition, the carpet cannot be completely cleaned and sanitized without significant
staff time. Removing the existing carpet and replacing with modern floor covering will significantly reduce
staff time for cleaning and maintenance, along with improving conditions for all who pass through this busy
area of the jail.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Liz Arbuckle,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stacey M. Boyd, Deputy
cc: Liz Arbuckle, Heike Anderson, Paul Reyes
C. 16
To:Board of Supervisors
From:David O. Livingston, Sheriff-Coroner
Date:October 16, 2018
Contra
Costa
County
Subject:Appropriation Adjustment - Transfer Appropriations from Plant Acquisition-Sheriff Coroner to Sheriff Detention
October 16, 2018 BOS Minutes 166
AGENDA ATTACHMENTS
TC27_5013
MINUTES ATTACHMENTS
Signed: Appropriation & Adjustment No.
5013
October 16, 2018 BOS Minutes 167
October 16, 2018 BOS Minutes 168
October 16, 2018 BOS Minutes 169
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22356 to transition two Mental Health Clinical
Specialist-Project (VQS2) positions #14718 and #14637 at salary plan and grade level TC2-1384
($4,980-$7,394) and incumbents into the Merit System's Mental Health Clinical Specialist (VQSB)
classification at salary plan and grade level TC2-1384 ($4,980-$7,394) in the Health Services Department.
(Represented)
FISCAL IMPACT:
Upon approval, there will be no cost associated with this action. (100% cost neutral Mental Health
Realignment)
BACKGROUND:
The Health Services Department is requesting to transition two Mental Health Clinical Specialist-Project
positions #14718 and #14637 and incumbents into the merit system. The incumbents have met the
provisions for transition from project to the merit system in accordance with PMR Section 1603.1 - Transfer
of Project Positions.
Section 1603.1 of the Personnel Management Regulations states that when the Board of Supervisors
establishes as regular service a program initially established by the Board for a specific limited period as
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Sabrina Pearson,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 17
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Transition two Mental Health Clinical Specialist-Project Positions and Incumbents into the Merit System
October 16, 2018 BOS Minutes 170
BACKGROUND: (CONT'D)
part of an approved project, employees who have served in Project positions for at least one (1) year
shall be included in the merit system if the Director of Human Resources recommends such inclusion,
the Board of Supervisor approves the classification and its addition to the merit system, and the
employees were originally appointed to the project position(s) from an eligible list on an open
competitive basis.
Both incumbents were appointed from an eligible list on an open competitive basis and have served more
than one (1) year in that classification. One incumbent was appointed to Project position #14637 on
January 14, 2015 and the other incumbent was appointed to position #14718 on June 12, 2017.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, incumbents will not receive the benefits of being a merit system employee.
AGENDA ATTACHMENTS
P300 22356 Transition 2 MH Clinical Spec Project to Merit System
MINUTES ATTACHMENTS
Signed P300 22356
October 16, 2018 BOS Minutes 171
POSITION ADJUSTMENT REQUEST
NO. 22356
DATE 9/24/2018
Department No./
Department Health Services Department Budget Unit No. 0467 Org No. 5983 Agency No. A18
Action Requested: Transition two Mental Health Clinical Specialist-Project (VQS2) positions #14718 and #14637 and
incumbents into the Merit System in the Health Services Department
Proposed Effective Date: 11/1/2018
Classification Questionnaire attached: Yes No / Cost is within Department’s budget: Yes No
Total One-Time Costs (non-salary) associated with request:
Estimated total cost adjustment (salary / benefits / one time):
Total annual cost $154,517.00 Net County Cost $0.00
Total this FY $19,314.00 N.C.C. this FY $0.00
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 100% Funded by Mental Health Realignment
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Sabrina Pearson
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE 10/9/2018
Transition two Mental Health Clinical Specialist-Project (VQS2) positions #14718 and #14637 at salary plan and grade level
TC2-1384 ($4,980-$7,394) and incumbents into the Merit System's Mental Health Clinical Specialist (VQSB) classification at
salary plan and grade level TC2-1384 ($4,980-$7,394) in the Health Services Department. (Represented)
Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date) Barbara Vargen-Kotchevar 10/9/2018
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/2018
Approve Recommendation of Director of Human Resources
Disapprove Recommend ation 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
October 16, 2018 BOS Minutes 172
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Resources 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
October 16, 2018 BOS Minutes 173
October 16, 2018 BOS Minutes 174
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22363 to add one (1) permanent full-time Mental Health
Program Chief position (VQDN) at salary plan and grade level ZA5-2029 ($9,156 - $11,129) in the Health
Services Department. (Represented)
FISCAL IMPACT:
Upon approval, this action has an annual cost of approximately $223,742 with pension costs of $50,855
already included. This cost is fully funded by Mental Health Services Act.
BACKGROUND:
The Health Services Department is requesting to add one permanent full-time Mental Health Program Chief
in the Behavioral Health Division to function as the Chief over Mental Health Services Act Programs. This
position is needed as the result of significant expansion due to supportive housing initiatives under the
Mental Health Services Act for the seriously mentally ill population. These initiatives are adding revenue
and programming to the County, and will require ongoing inter-divisional coordination, planning and
implementation efforts between Behavioral Health Division; Health, Housing and Homeless Division;
Public Health Division, and the County's Regional Medical Center. Significant adjustments
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jo-Anne Linares, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 18
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Add one Mental Health Program Chief position in the Health Services Department
October 16, 2018 BOS Minutes 175
BACKGROUND: (CONT'D)
in programming, such as universal screening and eligibility, and service delivery will need to be
developed, coordinated and agreed upon across divisions.
The Department has determined a full-time Mental Health Program Chief would be the most appropriate
classification to fulfill the needs of the Division to ensure that the County's most seriously and
persistently mentally ill citizens who are homeless receive and continue to receive the treatment and
housing support needed to maintain themselves in the community.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, there will not be an appropriate level of management staff to execute the
programs within the Mental Health Services Act in the Behavior Health Division.
AGENDA ATTACHMENTS
P300 22363_Add 1 Mental Health Program Chief in HSD
MINUTES ATTACHMENTS
Signed P300 22636
October 16, 2018 BOS Minutes 176
POSITION ADJUSTMENT REQUEST
NO. 22363
DATE 9/27/2018
Department No./
Department Health Services Budget Unit No. 0467 Org No. 5721 Agency No. A18
Action Requested: Add one (1) Mental Health Program Chief (VQDN) position in the Health Services Department.
Proposed Effective Date:
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 $223,742.00 Net County Cost
Total this FY $149,161.00 N.C.C. this FY
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 100% Mental Health Services Act
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Jo-Anne Linares
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Am end Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/2018
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources /s/ Julie DiMaggio Enea
Other: Approve Recommendation of Department ___________________________________
(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
October 16, 2018 BOS Minutes 177
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Resources 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 j ob
2. Non-County employee
Provide a justification if filling position(s) by C1 or C2
USE ADDITIONAL PAPER IF NECESSARY
October 16, 2018 BOS Minutes 178
October 16, 2018 BOS Minutes 179
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22364 to add one Community Health Worker I (VKWC)
position at salary plan and grade level TC5-0933 ($3,093-$3,410) in the Health Services Department.
(Represented)
FISCAL IMPACT:
Upon approval, this request has an annual cost of approximately $80,686 with pension costs of $15,584
already included. This cost is fully funded by Driving Under the Influence (DUI) fees paid by DUI
participants.
BACKGROUND:
The Health Services Department is requesting to add one Community Health Worker I to the Public Health
Division. This position will support the Driving Under the Influence Program by obtaining information
about DUI prevention, education and referrals. The Community Health Work I responsibilities include
gathering data pertaining to the prevalence of DUI in the community, assist with real time/ immediate
referrals to DUI Programs and being a resource to the courts specifically to DUI proceedings.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Sabrina Pearson, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 19
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Add one Community Health Worker I position in the Health Services Department
October 16, 2018 BOS Minutes 180
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, Driving Under the Influence program will not have the appropriate level of
staffing to implement educational information to the community and support the court system during
DUI proceedings.
AGENDA ATTACHMENTS
P300 22364_Add 1 Community Health Worker I position in HSD
MINUTES ATTACHMENTS
Signed P300 22364
October 16, 2018 BOS Minutes 181
POSITION ADJUSTMENT REQUEST
NO. 22364
DATE 10/2/2018
Department No./
Department Health Services Department Budget Unit No. 0466 Org No. 5925 Agency No. A18
Action Requested: Add one Community Health Worker I (VKWC) position in the Health Services Department.
Proposed Effective Date:
Classification Questionnaire attached: Yes No / Cost is within Department’s budget: Yes No
Total One-Time Costs (non-salary) associated with request:
Estimated total cost adjustment (salary / benefits / one time):
Total annual cost $80,686.00 Net County Cost $0.00
Total this FY $47,066.00 N.C.C. this FY $0.00
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 100% Driving Under the Influence Program
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Sabrina Pearson
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/18
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources /s/ Julie DiMaggio Enea
Other: Approve Department Request ___________________________________
(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
October 16, 2018 BOS Minutes 182
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Resources 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
October 16, 2018 BOS Minutes 183
October 16, 2018 BOS Minutes 184
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22365 to add one Community Health Worker I (VKWC)
position at salary plan and grade level TC5-0933 ($3,093-$3,410) in the Health Services Department.
(Represented)
FISCAL IMPACT:
Upon approval, this action has an annual cost of approximately $80,686 with pension costs of $15,584
already included. This cost is fully funded by Substance Abuse Block Grant (SABG) funds.
BACKGROUND:
The Health Services Department is requesting to add one Community Health Worker I to the Public Health
Division, in their Prevention Services Program. Prevention Service is a program that delivers diverse local
communities a safe and healthy environment by reducing alcohol and other drug use and abuse through
culturally competent, evidence-based prevention activities. The program addresses today's public health
problems within communities by confronting more urgent concerns around violence, drug use and the
struggle to keep families together. The Prevention Services Program includes activities or strategies around
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Sabrina Pearson, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 20
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Add one Community Health Worker I position in the Health Services Department
October 16, 2018 BOS Minutes 185
BACKGROUND: (CONT'D)
improving community skills to foster coalition, networks, knowledge and resources to effectively
educate providers. These programs help the communities embrace value, diversity and promote
preventative methods in the community through open forums.
This position will support Prevention Services by providing parents educational assistance via websites,
school programs and outside activities pertaining to marijuana, alcohol and prescription drugs as well as
support and referrals to substance use treatment centers; organizing alternative activities that are alcohol
and drug free events, for example is club live (a place where teenagers come to socialize).
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, Prevention Services will not have adequate support staff to provide
education and services to the community.
AGENDA ATTACHMENTS
P300 22365_Add 1 Community Health Worker I position in HSD
MINUTES ATTACHMENTS
Signed P300 22365
October 16, 2018 BOS Minutes 186
POSITION ADJUSTMENT REQUEST
NO. 22365
DATE 10/2/2018
Department No./
Department Health Services Department Budget Unit No. 0466 Org No. 5938 Agency No. A18
Action Requested: Add one Community Health Worker I (VKWC) position in the Health Services Department.
Proposed Effective Date:
Classification Questionnaire attached: Yes No / Cost is within Department’s budget: Yes No
Total One-Time Costs (non-salary) associated with request:
Estimated total cost adjustment (salary / benefits / one time):
Total annual cost $80,686.00 Net County Cost $0.00
Total this FY $47,066.00 N.C.C. this FY $0.00
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 100% Substance Abuse Block Grant
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Sabrina Pearson
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/18
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources /s/ Julie DiMaggio Enea
Other: Approve Department Request __________________________________
(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
October 16, 2018 BOS Minutes 187
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Projec t: 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 Resources 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
October 16, 2018 BOS Minutes 188
October 16, 2018 BOS Minutes 189
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22366 to add one Community Health Worker II (VKVB)
position at salary plan and grade level TC5-1043 ($3,449-$4,192) in the Health Services Department.
(Represented)
FISCAL IMPACT:
Upon approval, this request has an annual cost of approximately $95,172 with pension costs of $19,155
already included. This cost is funded by SAMHWorks (Substance Abuse and Mental Health Services for
CalWORKs participants) via Inter-Agency Agreement with Employment and Human Services Department.
BACKGROUND:
The Health Services Department is requesting to add one Community Health Worker II to the Public Health
Division. The SAMHWORKs Program works closely with Employment and Human Services Department
in helping CalWORKs participants remove barriers of employment by providing substance abuse and/or
metal assessments, provide domestic violence support groups and conduct training for Employment
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Sabrina Pearson, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 21
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Add one Community Health Worker II position in the Health Services Department
October 16, 2018 BOS Minutes 190
BACKGROUND: (CONT'D)
Specialists to identity mental health and substance abuse problems among CalWORKs participants.
This position supports SAMHWorks progam by assisting with the programs goals to reach out to eligible
CalWORKs Latino clients in the community with education about available programs via door to door
or existing departmental programs, client follow ups to update information on file and assists in
conducting surveys to determine community needs.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, SAMHWorks program will not have the appropriate level of staffing to
educate and support eligible Latino population in the community.
AGENDA ATTACHMENTS
p300
MINUTES ATTACHMENTS
Signed P300 22363
October 16, 2018 BOS Minutes 191
POSITION ADJUSTMENT REQUEST
NO. +
DATE 10/2/2018
Department No./
Department Health Services Department Budget Unit No. 0466 Org No. 5911 Agency No. A18
Action Requested: Add one Community Health Worker II (VKVB) position in the Health Services Department.
Proposed Effective Date:
Classification Questionnaire attached: Yes No / Cost is within Department’s budget: Yes No
Total One-Time Costs (non-salary) associated with request:
Estimated total cost adjustment (salary / benefits / one time):
Total annual cost $95,172.00 Net County Cost $0.00
Total this FY $55,517.00 N.C.C. this FY $0.00
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 100% SAMHWorks via Interagency Agreement with EHSD
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Sabrina Pearson
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources
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
October 16, 2018 BOS Minutes 192
REQUEST FOR PROJECT POSITIONS
Department Date 10/3/2018 No. xxxxxx
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 Resources 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 jo b
2. Non-County employee
Provide a justification if filling position(s) by C1 or C2
USE ADDITIONAL PAPER IF NECESSARY
October 16, 2018 BOS Minutes 193
October 16, 2018 BOS Minutes 194
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22367 to add one (1) permanent full-time Account Clerk
Supervisor (JDHD) position at salary plan and grade level K6X-1340 ($4,616 - $5,895) in the Health
Services Department. (Represented)
FISCAL IMPACT:
Upon approval, this action has an annual cost of approximately $126,744 with $26,940 in pension costs
already included. The entire cost is fully funded by third party revenues.
BACKGROUND:
The Health Services Department is requesting to add one permanent full-time Account Clerk Supervisor
position allocated to its Payroll Unit. The incumbent will be primarily responsible for overseeing the
day-to-day operations of the Payroll Unit and supervising the staff of 12 account clerks, 3 data entry clerks
and 1 clerk. The unit manually codes and processes time-sheets for over 4,500 employees on a bi-monthly
basis. With over 100 differentials attached to varied classifications represented by different unions and in
order to meet the Auditor-Controller deadlines, the payroll staff needs direct access to an on-site supervisor
who can address the daily nuances of manual payroll processing.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jo-Anne Linares, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 22
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Add One (1) Account Clerk Supervisor Position in the Health Services Department
October 16, 2018 BOS Minutes 195
BACKGROUND: (CONT'D)
In order to process pay warrants accurately and timely, the Department finds it necessary to add this
supervisory position.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, the Health Services Payroll Unit will not have adequate level of
supervision and runs the risk of inaccurate and untimely pay warrants to its 4,500 employees.
AGENDA ATTACHMENTS
P300 22367_Add 1 Account Clerk Supervisor in HSD
MINUTES ATTACHMENTS
Signed P300 22367
October 16, 2018 BOS Minutes 196
POSITION ADJUSTMENT REQUEST
NO. 22367
DATE 10/2/2018
Department No./
Department Health Services Budget Unit No. 0540 Org No. 6544 Agency No. A18
Action Requested: Add one (1) Account Clerk Supervisor (JDHD) position in the Health Services Department.
Proposed Effective Date:
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 $126,744.00 Net County Cost
Total this FY $84,496.00 N.C.C. this FY
SOURCE OF FUNDING TO OFFSET ADJUSTMENT Offset by Third Party Revenues
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Jo-Anne Linares
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Am end Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/2018
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources /s/ Julie DiMaggio Enea
Other: Approve Department Request ___________________________________
(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
October 16, 2018 BOS Minutes 197
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Resources 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 j ob
2. Non-County employee
Provide a justification if filling position(s) by C1 or C2
USE ADDITIONAL PAPER IF NECESSARY
October 16, 2018 BOS Minutes 198
October 16, 2018 BOS Minutes 199
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22368 to add two (2) Departmental Human Resources Analyst
I (ARVA) positions in the Health Services Department. (Unrepresented)
FISCAL IMPACT:
Upon approval, this action has an annual cost of approximately $283,533 with pension costs of $61,287
already included. The cost is fully funded by miscellaneous department-wide revenue offset per indirect
claims.
BACKGROUND:
The Health Services Department is requesting to add two (2) Departmental Human Resources Analyst I
positions allocated to its Personnel Division. Currently, there are a total of seven (7) analysts with three
assigned to recruitment and classification functions, and four assigned to labor relations functions. The
latter provides consultation and guidance to over 300 Division Managers and Supervisors on employee and
employer relations matters. The Department currently employs over 4,500 employees in varied
classifications represented by seven (7) different labor organizations with their own memorandum of
understanding (MOUs).
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jo-Anne Linares, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 23
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Add two (2) Departmental Human Resources Analyst I positions in the Health Services Department
October 16, 2018 BOS Minutes 200
BACKGROUND: (CONT'D)
Over the years, the Department has experienced an increase in employee and labor relations activities
that require adding these positions. Duties and responsibilities include providing advice and guidance on
personnel procedures related to the interpretation of MOUs, Personnel Management Regulations, Salary
Regulations, Merit System Principles, federal and State laws, Department policies, and County
Administrative Bulletins; investigating discrimination/harassment complaints both internal and external
including Department of Fair Employment and Housing (DFEH); acting as the Departmental
Representative in employee grievances up to and including mediation and arbitration proceedings;
working closely with supervisors on employee performance issues to include investigations and
determination of the level of disciplinary actions; and working with Counsel in Merit Board and PERB
proceedings.
This positions are necessary in order to effectively meet the demands of the Department's
employee/employer relations matters and adhere to stringent deadlines in response to grievances, and
discrimination and harassment complaints.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, the Personnel Division will not have adequate staff to respond to labor
relations matters, and harassment and discrimination complaints in a timely manner.
AGENDA ATTACHMENTS
P300 22368_Add 2 Dept HR Analyst I positions in HSD
MINUTES ATTACHMENTS
Signed P300 22368
October 16, 2018 BOS Minutes 201
POSITION ADJUSTMENT REQUEST
NO. 22368
DATE 9/21/2018
Department No./
Department Health Services Budget Unit No. 0540 Org No. 6547 Agency No. A18
Action Requested: Add two (2) Departmental Human Resources Analyst I (ARVA) positions in the Health Services
Department.
Proposed Effective Date:
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 $283,533.00 Net County Cost
Total this FY $189,022.00 N.C.C. this FY
SOURCE OF FUNDING TO OFFSET ADJUSTMENT Misc dept wide revenue offset per indirect expense claims
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Jo-Anne Linares
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Am end Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/2018
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources /s/ Julie DiMaggio Enea
Other: Approve Department Request ___________________________________
(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
October 16, 2018 BOS Minutes 202
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Resources 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 j ob
2. Non-County employee
Provide a justification if filling position(s) by C1 or C2
USE ADDITIONAL PAPER IF NECESSARY
October 16, 2018 BOS Minutes 203
October 16, 2018 BOS Minutes 204
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22369 to increase the hours of five (5) Licensed Vocational
Nurse (VT7G) position #15512 from 32/40 to 40/40; position #15513 from 24/40 to 40/40; position #12057
from 32/40 to 40/40; position #12429 from 24/40 to 40/40 and position #10820 from 24/40 to 40/40 at
salary level TAX-1287 ($4,380.56 - $5,594.16) in the Health Services Department. (Represented)
FISCAL IMPACT:
If this action is approved, there is an annual cost of approximately $157,869.99, which includes pension
costs of $56,043.85. The cost is entirely supported with County General Funds.
BACKGROUND:
The Health Services Department is requesting to increase the hours of five (5) Licensed Vocational Nurse
positions, as per the Memorandum of Understanding with Teamsters Local 856. With the hours increase,
these part-time positions will become full-time to include position #15512 from 32/40 to 40/40, position
#15513 from 24/40 to 40/40, position #12057 from 32/40 to 40/40, position #12429 from 24/40 to 40/40 and
position #10820 from 24/40 to 40/40. The incumbents have been working the increased hours for the past
six months to prevent mandatory overtime and these hours are certified by the Department Manager as
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jacqueline F. Kidd (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C. 24
To:Board of Supervisors
From:Anna Roth, Health Services
Date:October 16, 2018
Contra
Costa
County
Subject:Increase Position Hours of Five Licensed Vocation Nurse in Health Services
October 16, 2018 BOS Minutes 205
BACKGROUND: (CONT'D)
being operationally necessary to continue the mandated functions of the department, and to ensure
patient care at both the Martinez Detention Facility and the West County Detention Facility.
Upon approval, there is an annual cost of approximately $157,869.99 which includes pension cost of
$56,043.85. The cost is entirely supported with County General Funds.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, both the Martinez Detention Facility and the West County Detention
Facility will not have adequate staffing to meet the demand and volume of patient care needed for those
we serve.
AGENDA ATTACHMENTS
P300 22369_Inc Hours of 5 PT LVN equiv to 64 hours in HSD
MINUTES ATTACHMENTS
Signed P300 22369
October 16, 2018 BOS Minutes 206
POSITION ADJUSTMENT REQUEST
NO. 22369
DATE 10/4/2017
Department No./
Department Health Services Budget Unit No. 0540 Org No. 5700 Agency No. A18
Action Requested: Increase the hours of five permanent part-time Licensed Vocational Nurse (V T7G) position #12429 from
24/40 to 40/40, #15513 from 24/40 to 40/40, #10820 from 24/40 to 40/40, #15512 from 32/40 to 40/40 and position #12057
from 32/40 to 40/40 in the Health Services Department.
Proposed Effective Date:
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 $157,869.99 Net County Cost
Total this FY $118,402.47 N.C.C. this FY
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 100% County General Fund
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Jacqueline Kidd
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE
Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date)
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE 10/9/2018
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resou rces /s/ Julie DiMaggio Enea
Other: Approve Department Request ___________________________________
(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
October 16, 2018 BOS Minutes 207
REQUEST FOR PROJECT POSITIONS
Department Date 10/9/2018 No. xxxxxx
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 Resources 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
October 16, 2018 BOS Minutes 208
October 16, 2018 BOS Minutes 209
RECOMMENDATION(S):
ADOPT Position Adjustment Resolution No. 22349 to add four (4) Intermediate Clerk-Project (99J3)
(represented) positions at Salary Plan and Grade QH5 0946 ($3,228 - $3,924), and cancel four (4) Associate
Teacher-Project (CJW1) (represented) vacant position numbers 16414, 12918, 6815, and 13324 at Salary
Plan and Grade QH5 0643 ($2,391 - $2,907) and two (2) Infant/Toddler Associate Teacher -Project (CJW2)
(represented) vacant position numbers 14083 and 6879 at Salary Plan and Grade QH5 0643 ($2,391 -
$2,907) in the Employment and Human Services Department, Community Services Bureau.
FISCAL IMPACT:
Upon approval, this action will result in an annual saving of approximately $33,066, and net annual pension
cost saving of $6,537. Added positions will be funded with 50% Federal revenue, and 50% State revenue.
BACKGROUND:
The Intermediate Clerk-Project classification is needed to support the Comprehensive Services Unit in the
Community Services Bureau with data entry, collection and processing of parent applications and
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Reni Radeva (925)
608-5036
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc: Reni Radeva
C. 25
To:Board of Supervisors
From:Kathy Gallagher, Employment & Human Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Add and Cancel Positions in the Employment and Human Services Department, Community Services Bureau
October 16, 2018 BOS Minutes 210
BACKGROUND: (CONT'D)
documentation required for enrolling new children in the Bureau's various child care programs. Further,
the Intermediate Clerk-Project positions will be filing and keeping accurate documentation and
preparing progress reports required by the program's funding sources. These clerks will provide clerical
support to the Comprehensive Services Managers, the Comprehensive Services Assistant Managers, and
the Assistant Directors.
The six vacant positions being eliminated are no longer needed due to programmatic changes.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, CSB's Comprehensive Services Unit will not have sufficient staff to
perform the services to program families required by the Head Start Performance Standards.
CHILDREN'S IMPACT STATEMENT:
The Employment and Human Services Department, Community Services Bureau supports four of
Contra Costa County's community outcomes - Outcome 2: Children and Youth Healthy and Preparing
for Productive Adulthood; Outcome 3: Families that are Economically Self Sufficient; Outcome 4:
Families that are Safe, Stable and Nurturing; and Outcome 5: Communities that are Safe and Provide a
Health Quality of Life for Children and Families. Failure to add the required clerical positions may
negatively impact the Bureau's ability to timely and effectively support the outcomes listed above.
AGENDA ATTACHMENTS
AIR 33996 P300 22349 BOS 10.16.18
MINUTES ATTACHMENTS
Signed P300 22349
October 16, 2018 BOS Minutes 211
POSITION ADJUSTMENT REQUEST
NO. 22349
DATE 9/20/2018
Department No./
Department EHSD/CSB Budget Unit No. 0588 Org No. 1462 Agency No. 019
Action Requested: Add four Intermediate Clerk-Project (99J3) (represented) positioinsand cancel four Associate Teacher-
Project (CJW1) and two Infant/Toddler Associate Teacher-Project (CJW2) positions (represented) in Employment and Human
Services Department/Community Services Bureau.
Proposed Effective Date: 10/1/2018
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 $297,303.00 Net County Cost $0.00
Total this FY $222,977.00 N.C.C. this FY $0.00
SOURCE OF FUNDING TO OFFSET ADJUSTMENT 50% Federal & 50% State funding
Department must initiate necessary adjustment and submit to CAO.
Use additional sheet for further explanations or comments.
Reni Radeva
______________________________________
(for) Department Head
REVIEWED BY CAO AND RELEASED TO HUMAN RESOURCES DEPARTMENT
Julia Taylor 9/21/2018
___________________________________ ________________
Deputy County Administrator Date
HUMAN RESOURCES DEPARTMENT RECOMMENDATIONS DATE 9/28/2018
Add four (4) Intermediate Clerk-Project (99J3) (represented) positions at Salary Plan and Grade QH5 0946 ($3,228 -
$3,924), and cancel four (4) Associate Teacher-Project (CJW1) (represented) vacant position numbers 16414, 12918, 6815,
and 13324 and two (2) Infant/Toddler Associate Teacher -Project (CJW2) (represented) vacant position numbers 14083 and
6879 at Salary Plan and Grade QH5 0643
Amend Resolution 71/17 establishing positions and resolutions allocating classes to the Basic / Exempt salary schedule.
Effective: Day following Board Action.
(Date) Amanda Monson 9/28/2018
___________________________________ ________________
(for) Director of Human Resources Date
COUNTY ADMINISTRATOR RECOMMENDATION: DATE
Approve Recommendation of Director of Human Resources
Disapprove Recommendation of Director of Human Resources
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
October 16, 2018 BOS Minutes 212
REQUEST FOR PROJECT POSITIONS
Department Date 9/28/2018 No. xxxxxx
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 Resources 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 jo b
2. Non-County employee
Provide a justification if filling position(s) by C1 or C2
USE ADDITIONAL PAPER IF NECESSARY
October 16, 2018 BOS Minutes 213
October 16, 2018 BOS Minutes 214
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to apply for and
accept an amount not to exceed $400,000 from the Blue Shield of California Foundation grant for the
Leveraging Collaboration for Domestic Violence Project for the period January 1, 2019 through December
31, 2020.
FISCAL IMPACT:
County to receive an amount not to exceed $400,000 for a 2-year period from the Blue Shield of California
Foundation. No County match is required.
BACKGROUND:
Grant funds are to be used to support the success of a collaborative approach to addressing issues of
domestic violence and abuse. The Leveraging Collaborative for Domestic Violence (Collaborative) will
create planning and implementation strategies.
Planning strategies for the first grant year may include, but are not limited to community assessment of
needs, committee and community assets and priorities; identification of a Collaborative structure and
governance structure, and process creation; identification and confirmed engagement of collaborators
(organizations, community leaders, County residents, and survivors); definition of shared goals
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Elaine Burres
608-4960
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
C. 26
To:Board of Supervisors
From:Kathy Gallagher, Employment & Human Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Blue Shield of California Foundation Grant Funding
October 16, 2018 BOS Minutes 215
BACKGROUND: (CONT'D)
and outcomes; development of a portfolio of evidence-based or promising interventions and approaches
addressing domestic violence; and, development of a data strategy (collection, analysis, and applications).
Implementation strategies for the second grant year will focus on refinement of Collaborative structure and
governance structure, and decision-making processes; expansion of Collaborative membership strategies
and approaches to prevention; implementation of a portfolio of evidence-based or promising interventions
and approaches; ongoing data collection to evaluate progress and direction of the Collaborative; and,
exploration of shared resources for long-term sustainability.
CONSEQUENCE OF NEGATIVE ACTION:
Without funding, County would not be able participate in the Leveraging Collaboration for Domestic
Violence Project to provide a multifaceted, multisectoral, and coordinated approach to domestic violence
and abuse.
October 16, 2018 BOS Minutes 216
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee, to execute on behalf of the
County Agreement #28-372-1 with the City of Richmond for its Police Department, a government agency,
to pay the County an amount not to exceed $100,000 for the Coordinated Outreach, Referral and
Engagement (CORE) Program to provide homeless outreach services, for the period from October 1, 2018
through June 30, 2019.
FISCAL IMPACT:
Approval of this Agreement will allow the County to receive an amount not to exceed $100,000 from the
City of Richmond for its Police Department to provide homeless outreach services. No County match is
required.
BACKGROUND:
The CORE Program locates and engages homeless clients throughout Contra Costa County. CORE teams
serve as an entry point into the County’s coordinated entry system for unsheltered persons and work to
locate, engage, stabilize and house chronically homeless individuals and families.
Approval of Agreement #28-372-1 will allow County to receive funds to operate the CORE Program and
provide services
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Lavonna Martin,
925-608-6701
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: L Walker , M Wilhelm
C. 27
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Agreement #28-372-1 with the City of Richmond for its Police Department
October 16, 2018 BOS Minutes 217
BACKGROUND: (CONT'D)
to the City of Richmond for its Police Department through June 30, 2019. The County is agreeing to
indemnify and hold harmless the Contractor for claims arising out of County’s performance under this
Contract.
CONSEQUENCE OF NEGATIVE ACTION:
If this agreement is not approved, County will not receive funding and without such funding, the CORE
program may have to operate at a reduced capacity.
October 16, 2018 BOS Minutes 218
RECOMMENDATION(S):
ADOPT Resolution No. 2018/523 approving and authorizing the Public Works Director, or designee, to
submit and accept if awarded, a grant application to the Department of Resources Recycling and Recovery
(CalRecycle) for rubberized asphalt concrete and chip seal projects, Countywide.
FISCAL IMPACT:
There is no fiscal impact. This grant opportunity allows the County to receive up to $350,000 for each
successful application from CalRecycle for rubberized concrete and chip seal projects.
BACKGROUND:
CalRecycle provides grants to promote use of recycled content surfacing products derived from recycled
California-generated waste tires. Rubberized asphalt concrete and chip seal products can be used to prolong
the life of the County's roadway system.
CONSEQUENCE OF NEGATIVE ACTION:
If the application is not approved, the County will not be eligible to receive CalRecycle funds.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Brian Louis 925
313-7039
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
C. 28
To:Board of Supervisors
From:Brian M. Balbas, Public Works Director/Chief Engineer
Date:October 16, 2018
Contra
Costa
County
Subject:Grant Applications for Rubberized Asphalt Concrete and Chip Seal Projects to CalRecycle
October 16, 2018 BOS Minutes 219
AGENDA ATTACHMENTS
Resolution No. 2018/523
MINUTES ATTACHMENTS
Signed: Resolution No.
2018/523
October 16, 2018 BOS Minutes 220
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/523
IN THE MATTER OF a Resolution to the Board of Supervisors authorizing submittal of application(s) for all CalRecycle Grants
for which Contra Costa County is eligible.
WHEREAS, Public Resources Code section 40000 et seq. authorizes the Department of Resources Recycling and Recovery
(CalRecycle) to administer various grant programs (grants) in furtherance of the State of California’s (state) efforts to reduce,
recycle, and reuse solid waste generated in the state thereby preserving landfill capacity and protecting public health and safety
and the environment; and,
WHEREAS, in furtherance of this authority CalRecycle is required to establish procedures governing the application, awarding,
and management of the grants; and,
WHEREAS, CalRecycle grant application procedures require, among other things, an applicant’s governing body to declare by
resolution certain authorizations related to the administration of CalRecyle grants.
NOW, THEREFORE, BE IT RESOLVED that the Contra Costa County Board of Supervisors hereby authorizes the submittal of
application(s) to CalRecycle for all grants for which Contra Costa County is eligible.
BE IT FURTHER RESOLVED that the Public Works Director, or designee, is hereby authorized and empowered to execute in
the name of Contra Costa County all grant documents, including, but not limited to , applications, agreements, amendments and
requests for payment, necessary to secure grant funds and implement the approved grant project; and,
BE IT FURTHER RESOLVED that these authorizations are effective for five (5) years from the date of adoption of this
resolution.
Contact: Brian Louis 925 313-7039
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
October 16, 2018 BOS Minutes 221
October 16, 2018 BOS Minutes 222
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee (Marilyn Underwood), to execute
on behalf of the County Grant Agreement #28-511-38 (EA29-18-0070) with the California Department of
Resources Recycling and Recovery (CalRecycle), to pay the County an amount not to exceed $26,520, for
continuation of the Local Enforcement Agency (LEA) assistance funds for the Department's Environmental
Health Division Solid Waste Program, for the period July 1, 2018 through October 29, 2019.
FISCAL IMPACT:
Approval of this Agreement will result in a payment to the County of $26,520 for the Department's Solid
Waste Program. No County match is required.
BACKGROUND:
On September 12, 2017, the Board of Supervisors approved Grant Agreement #28-511-36 from CalRecycle
for the LEA Grant Program, to provide funding for the Department’s Environmental Health Division Solid
Waste Program, for the period from July 1, 2016 through October 29, 2017. On May 8, 2018, the Board of
Supervisors authorized the Health Services Department to
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm
C. 29
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Agreement #28–511–38 with the California Department of Resources Recycling and Recovery
October 16, 2018 BOS Minutes 223
BACKGROUND: (CONT'D)
submit funding application #28-511-37 for continuation of funding for the Solid Waste Program.
Approval of this Grant Agreement #28-511-38 will allow the County to use the funds solely for the support
of the solid waste facilities permit and inspection programs, including personnel, training, equipment,
supplies, and technical support. This Agreement includes agreeing to indemnify and hold harmless the
Grantor from any claims arising out of the performance of this Grant Agreement, through October 29,
2019.
CONSEQUENCE OF NEGATIVE ACTION:
If this Agreement is not approved, the County will not receive funds to support its solid waste facilities
permit and inspection programs.
October 16, 2018 BOS Minutes 224
RECOMMENDATION(S):
ADOPT Resolution No. 2018/520 to approve and authorize the District Attorney, or designee, to submit an
application and execute a grant award agreement, and any extensions or amendments thereof, pursuant to
State guidelines, with the California Department of Insurance for funding of the Organized Automobile
Fraud Activity Interdiction Program in the amount of $490,160 for FY 2018/2019, $515,690 for FY
2019/2020 and $542,479 for FY 2020/2021. The total amount for three year program is $1,548,329 for the
period of July 1, 2018 through June 30, 2021.
FISCAL IMPACT:
The grant will fund salaries and benefits for 1 FTE Attorney, 1 FTE Senior Inspector and 1 FTE Legal
Assistant. Supplantation is prohibited. (100% State Funds - no match required).
BACKGROUND:
The State Legislature has determined that one of the significant factors driving up the cost of automobile
insurance is fraud. The Organized Automobile Fraud Activity Interdiction Program award is allocated from
funds received per Insurance Code 1874.8, whereby each insurer
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Elizabeth Molera (925)
957-2205
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
C. 30
To:Board of Supervisors
From:Diana Becton, District Attorney
Date:October 16, 2018
Contra
Costa
County
Subject:Approval to Submit an Application and Execute a Grant Award for funding of Organized Automobile Fraud Activity
Interdiction Program
October 16, 2018 BOS Minutes 225
BACKGROUND: (CONT'D)
doing business in California pays an annual fee of $0.50 for each vehicle insured under an insurance
policy it issues in this states. A portion of the assessment amount is earmarked for distribution to District
Attorneys for enhanced investigation and prosecution of organized automobile insurance fraud.
CONSEQUENCE OF NEGATIVE ACTION:
The District Attorney's Office will not be able to apply for and accept the grant.
AGENDA ATTACHMENTS
Resolution No. 2018/520
MINUTES ATTACHMENTS
Signed: Resolution No. 2018/520
October 16, 2018 BOS Minutes 226
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/520
IN THE MATTER OF Funding for the Organized Automobile Fraud Activity Interdiction Program.
WHEREAS, the Board of Supervisors, Contra Costa County, desires to undertake a certain project designated as the Organized
Automobile Fraud Activity Interdiction Program to be funded in part from funds made available under the authority of California
Insurance Code Section 1874.8, and administered by the California Department of Insurance.
NOW, THEREFORE, BE IT RESOLVED that the District Attorney of the County of Contra Costa, or designee, is authorized on
its behalf to submit a grant proposal to the California Department of Insurance and is authorized to execute, on behalf of the
Board of Supervisors, the Grant Award Agreement, including any extensions or amendments thereof.
IT IS AGREED that any liability arising out of the performance of the Grant Award Agreement, including civil court actions for
damages, shall be the responsibility of the grant recipient and the authorizing agency. The State of California and the California
Department of Insurance disclaim responsibility for any such liability.
BE IT FURTHER RESOLVED that the grant funds received hereunder shall not be used to supplant expenditures previously
authorized or controlled by this body.
This resolution will supersede Resolution No. 2018/437.
Contact: Elizabeth Molera (925) 957-2205
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
October 16, 2018 BOS Minutes 227
October 16, 2018 BOS Minutes 228
RECOMMENDATION(S):
ADOPT Resolution No 2018/535 approving and authorizing the District Attorney, or designee, to submit
an application and execute a grant award agreement, and any extensions or amendments thereof, pursuant to
State guidelines, with the California Department of Insurance for funding of the Automobile Insurance
Fraud Prosecution Program in the amount of $732,709 for the period July 1, 2018 through June 30, 2019
FISCAL IMPACT:
$732,709. 100% State, no county match. The grant will fund salaries and benefits for Attorney, Senior
Inspector, Legal Assistant, and small amounts of other staff time assigned to the program. Supplantation is
prohibited.
BACKGROUND:
The State Legislature has determined that one of the significant factors driving up the cost of automobile
insurance is fraud. While fraud is recognized as a growing problem across the country, California is an area
of concerted criminal activity in insurance fraud. The Automobile Insurance Fraud Prosecution award is
allocated from a trust fund financed by an assessment per insured vehicle, payable by the insurer. A portion
of the assessment amount is earmarked for distribution to County District Attorney Offices for enhanced
prosecution of automobile fraud.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Elizabeth Molera, (925)
957-2205
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
C. 31
To:Board of Supervisors
From:Diana Becton, District Attorney
Date:October 16, 2018
Contra
Costa
County
Subject:2018/19 Automobile Insurance Fraud Prosecution Grant Application
October 16, 2018 BOS Minutes 229
CONSEQUENCE OF NEGATIVE ACTION:
The District Attorney's Office will be unable to apply for and accept the grant.
CHILDREN'S IMPACT STATEMENT:
No impact.
CLERK'S ADDENDUM
CORRECTED TO READ: ADOPT Resolution No. 2018/553 2018/535 approving and authorizing the
District Attorney, or designee to submit an application and execute a grant award agreement,
including any extensions or amendments thereof, pursuant to State guideline, with the California
Department of Insurance for funding of the Automobile Insurance Fraud Prosecution Program in
the amount of $732,709 for the period July 1, 2018 through June 30, 2019. (100% State)
AGENDA ATTACHMENTS
Resolution No. 2018/535
MINUTES ATTACHMENTS
Signed: Resolution No. 2018/535
October 16, 2018 BOS Minutes 230
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/535
IN THE MATTER OF: Funding for the Automobile Insurance Fraud Prosecution Program.
WHEREAS, the Board of Supervisors, Contra Costa County, desires to undertake a certain project designated as the Automobile
Insurance Fraud Prosecution Program to be funded in part from funds made available under the authority of California Insurance
Code Section 1872.8, California Code of Regulations, Title 10, 2698.60 and administered by the California Department of
Insurance.
NOW, THEREFORE, BE IT RESOLVED that the District Attorney of the County of Contra Costa, or designee, is authorized on
its behalf to submit a grant proposal to the California Department of Insurance and is authorized to execute, on behalf of the
Board of Supervisors, the Grant Award Agreement, including and extensions or amendments thereof.
IT IS AGREED that any liability arising out of the performance of the Grant Award Agreement, including civil court actions for
damages, shall be the responsibility of the grant recipient and the authorizing agency. The State of California and the California
Department of Insurance disclaim responsibility for any such liability.
BE IT FURTHER RESOLVED that the grant funds received hereunder shall not be used to supplant expenditures previously
authorized or controlled by this body.
This resolution will supersede Resolution No. 2018/211.
Contact: Elizabeth Molera, (925) 957-2205
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
October 16, 2018 BOS Minutes 231
October 16, 2018 BOS Minutes 232
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Public Defender, or designee, to execute a contract amendment with The
Justice Management Institute decreasing the payment limit by $6,000 to a new total payment limit of
$110,886, eliminating the County's obligation to pay travel related expenditures and extending the
termination date from October 1, 2018 to September 30, 2019.
FISCAL IMPACT:
There are no additional costs to County. (Cost savings of $6,000)
BACKGROUND:
The Smart Defense Initiative grant funded by the Federal Bureau of Justice funds County's contract with
The Justice Management Institute (contract no. 45508). This funding supports the West County
Misdemeanor Early Representation Program (MERP) which is designed to provide immediate
representation for persons cited for misdemeanor offenses, so as to reduce incarceration and collateral
consequences stemming from failures to appear (FTA's) for indigent clients in Richmond, CA. This grant
also provides funding
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Joanne Sanchez-Rosa,
925-335-8065
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
C. 32
To:Board of Supervisors
From:Robin Lipetzky, Public Defender
Date:October 16, 2018
Contra
Costa
County
Subject:Contract Amendment with The Justice Management Institute (Contract No. 45508)
October 16, 2018 BOS Minutes 233
BACKGROUND: (CONT'D)
for The Justice Management Institute to assist with program design, implementations and tracking of
multiple data points to evaluate program performance. The request to amend the contract with The
Justice Management Institute will allow the Contractor to extend the term of their work with the
Program to complete milestones as written in the original contract with no additional funding required.
CONSEQUENCE OF NEGATIVE ACTION:
If the amendment is not approved, The Justice Management Institute would no be able to continue to
perform its consulting services associated with the grant funding requirements which may result in some
tasks and milestones not being achieved.
ATTACHMENTS
October 16, 2018 BOS Minutes 234
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee, to execute on behalf of the
County, Contract #26-768-8 with Frederick J. Nachtwey, M.D., an individual, in an amount not to exceed
$384,000 to provide pulmonary services at Contra Costa Regional Medical Center (CCRMC) and Contra
Costa Health Centers for the period November 1, 2018 through October 31, 2021.
FISCAL IMPACT:
This Contract is funded 100% by Hospital Enterprise Fund I. (No rate increase)
BACKGROUND:
On October 17, 2017, the Board of Supervisors approved Contract #26-768-7 with Frederick J. Nachtwey
M.D., to provide pulmonary services at CCRMC and Contra Costa Health Centers, for the period
November 1, 2017 through October 31, 2018.
Approval of Contract #26-768-8, will allow Contractor to continue to provide pulmonary services at
CCRMC and Contra Costa Health Centers, through October 31, 2021.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: A. Floyd , M. Wilhelm
C. 33
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Contract #26-768-8 with Frederick J. Nachtwey, M.D.
October 16, 2018 BOS Minutes 235
CONSEQUENCE OF NEGATIVE ACTION:
If this contract is not approved, patients at CCRMC and Contra Costa Health Centers would not have
access to Contractor’s services.
October 16, 2018 BOS Minutes 236
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent, on behalf of Risk Management, to execute a purchase
order with Ventiv Technology, Inc., in the amount of $230,305 for workers' compensation and liability
claims management system maintenance and annual software licensing for the period from October 1, 2018
through September 30, 2019 as recommended by the Director of Risk Management.
FISCAL IMPACT:
Costs are supported through Countywide inter-departmental charges to the Internal Service Funds for
workers' compensation and general liability.
BACKGROUND:
Ventiv Technology, Inc., provides the iVOS claims management system used by Risk Management to
process current and historical claims data for administration of claims, premium charges, actuarial analysis
and identification of loss trends.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V
Supervisor
Contact: Sharon Hymes-Offord,
(925) 335-1450
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc:
C. 34
To:Board of Supervisors
From:Sharon Offord Hymes, Risk Manager
Date:October 16, 2018
Contra
Costa
County
Subject:Blanket Purchase Order with Ventiv Technology, Inc.
October 16, 2018 BOS Minutes 237
CONSEQUENCE OF NEGATIVE ACTION:
County will not have licensing for the workers' compensation and liability claims management system
software.
October 16, 2018 BOS Minutes 238
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee, to execute on behalf of the
County Contract #77-172 with Wound MD, PC, a professional corporation, in an amount not to exceed
$500,000, to provide physician wound care services for Contra Costa Health Plan (CCHP) patients residing
in health care facilities, for the period October 1, 2018 through September 30, 2020.
FISCAL IMPACT:
This Contract is funded 100% by CCHP Enterprise Fund II.
BACKGROUND:
Under Contract #77-172, the Contractor will provide physician wound care services for CCHP patients
residing in Health Care facilities, for the period October 1, 2018 through September 30, 2020.
CONSEQUENCE OF NEGATIVE ACTION:
If this contract is not approved, CCHP members will not receive the benefits of physician wound care
services from the Contractor.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: K Cyr, M Wilhelm
C. 35
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Contract #77-172 with Wound MD, PC
October 16, 2018 BOS Minutes 239
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent, on behalf of the Health Services Director, to execute
(1) a purchase order with VigiLanz Corporation, in an amount not to exceed $178,528 for the renewal of
Dynamic Monitoring Suite software maintenance, support and hosting for the period January 1, 2019
through December 31, 2020, and (2) Amendment No. 1 to Software As A Service (SAAS) License
Agreement.
FISCAL IMPACT:
100% funding is included in the Hospital Enterprise Fund I Budget.
BACKGROUND:
VigiLanz Dynamic Monitoring Suite is a complete real-time decision support and care management
solution for our clinical pharmacies. VigiLanz helps clinical pharmacists conduct more thorough medication
real-time oversight to identify, anticipate and prevent Adverse Drug Events (ADEs). VigiLanz provides the
solution through a Software as a Service (SaaS) arrangement and hosts the software and data.
Approval of the renewal will allow the vendor to continue providing services through December 31, 2020.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Patrick Wilson,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm, Allyson Eggert
C. 36
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Purchase Order with VigiLanz Corporation for Dynamic Monitoring Suite Renewal
October 16, 2018 BOS Minutes 240
BACKGROUND: (CONT'D)
The Agreement obligates the County to indemnify VigiLanz for losses arising out of (i) the diagnosis, care
and treatment of County’s patients, (ii) County’s breach of the agreement; and (iii) any negligence, gross
negligence or intentional misconduct by County in performing under the agreement.
CONSEQUENCE OF NEGATIVE ACTION:
Failure to renew this application could cause pharmacists not to be alerted to drug interactions, which could
cause Adverse Drug Events (ADEs) in patients.
October 16, 2018 BOS Minutes 241
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee, to execute on behalf of the
County Contract Extension Agreement #76-553-2 with The Regents of the University of California, San
Francisco, a California Constitutional Corporation, to extend the termination date from November 30, 2018
to November 30, 2020 with no change in the original payment limit of $50,000 to continue to provide
pediatric cardiology services.
FISCAL IMPACT:
None, there is no change in the Contract Payment Limit of $50,000. This Contract is funded by 100%
Hospital Enterprise Fund I. (No rate increase)
BACKGROUND:
On December 20, 2016, the Board of Supervisors approved Contract #76-553 (as amended by extension
agreement #76-553-1), with The Regents of the University of California, San Francisco, a California
Constitutional Corporation, for the provision of pediatric cardiology services, including, fetal
echocardiograms and electrocardiograms for the Pediatrics Unit at Contra Costa Regional Medical Center
(CCRMC) through November 30, 2018. This agreement includes mutual indemnification.
Approval of Contract Extension Agreement #76-553-2 will allow Contractor to continue providing pediatric
cardiology services through November, 30, 2020.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: D Morgan, M Wilhelm
C. 37
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Extension Agreement #76-553-2 with The Regents of the University of California, San Francisco
October 16, 2018 BOS Minutes 242
October 16, 2018 BOS Minutes 243
CONSEQUENCE OF NEGATIVE ACTION:
If this extension is not approved, Contractor will not continue to provide pediatric cardiology services at
CCRMC.
October 16, 2018 BOS Minutes 244
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director,
an amendment to Purchase Order #F01880 with Polymedco, Inc., to increase the payment limit by $300,000
to a new payment limit of $780,000 for reagents and supplies to perform immunochemical fecal occult
blood testing for the Clinical Laboratory at Contra Costa Regional Medical Center (CCRMC), with no
change in the original term of September 1, 2015 through August 31, 2019.
FISCAL IMPACT:
100% Hospital Enterprise Fund I Budget.
BACKGROUND:
Polymedco’s OC-Auto Micro 80 Analyzer with fecal occult blood (FOB) reagents is an automated
immunochemical FOB testing system that detects human red cells only with no interferences from red meat,
turnips, melons, aspirin, anti-inflammatory drugs and vitamin C. This improvement directs many more of
the “right” patients to colonoscopy leading to the earlier detection of polyps and colorectal cancer. The
Laboratory is sending greater quantities of the cancer detection test to patients in an effort to get more
people to return them and be screened.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jaspreet Benepal,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm, Margaret Harris
C. 38
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Purchase Order with Polymedco, Inc.
October 16, 2018 BOS Minutes 245
CONSEQUENCE OF NEGATIVE ACTION:
If this Purchase Order is not approved, the CCRMC Clinical Laboratory will not be able to perform patient
testing for colorectal cancer.
October 16, 2018 BOS Minutes 246
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director,
a Purchase Order with Smith and Nephew, Inc., in an amount not to exceed $600,000 for the purchase of
medical supplies for the Operating Room at Contra Costa Regional Medical Center (CCRMC), for the
period from January 1, 2019 through December 31, 2020.
FISCAL IMPACT:
100% funding is included in the Hospital Enterprise Fund I Budget.
BACKGROUND:
This Purchase Order request is for medical supplies like anchors necessary for orthopedic surgeries to repair
rotator cuff tear of the shoulder and repair of the anterior and posterior cruciate ligament of the knee,
gynecological surgery using TruClear System which is a tissue removal device allowing the surgeon to do
surgery in a minimally invasive technique; Ear, Nose and Throat procedures like tonsillectomy,
adenoidectomy, laryngeal polypectomy and sinus surgery. CCRMC orders coblators used to remove tissues
at a low relative temperature resulting in a minimal thermal damage to surrounding soft tissue. This vendor
has been providing quality medical supplies to CCRMC for more than a decade and is widely used.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jaspreet Benepal,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm, Margaret Harris
C. 39
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Purchase Order with Smith and Nephew, Inc
October 16, 2018 BOS Minutes 247
CONSEQUENCE OF NEGATIVE ACTION:
If this Purchase Order is not approved, the CCRMC Operating Room will not be able to perform surgeries
mentioned above.
October 16, 2018 BOS Minutes 248
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director,
a Purchase Order with Bay Cities Produce Inc. in an amount not to exceed $550,000 for the purchase of
perishable pre-prepared produce and dairy products for the Contra Costa Regional Medical Center
(CCRMC) for the period from November 1, 2018 through October 31, 2020.
FISCAL IMPACT:
100% budgeted in the Hospital Enterprise Fund I budget.
BACKGROUND:
Bay Cities Produce, Inc. prepares and distributes perishable produce and dairy products. These supplies are
used to feed CCRMC’s patient population and employees. The amount of money has been increased, as we
will purchase dairy for patients through this vendor, due to the fact that they deliver to CCRMC six days a
week.
CONSEQUENCE OF NEGATIVE ACTION:
If this Purchase Order is not approved, patients will not be fed, which affects patient care.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jaspreet Benepal,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm, Margaret Harris
C. 40
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Purchase Order for Bay Cities Produce, Inc.
October 16, 2018 BOS Minutes 249
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director,
an amendment to Purchase Order #F06494 with D.T. Davis Enterprises, Ltd. (dba Hovertech International),
a Corporation, to increase the Payment Limit by $200,000 to a new payment limit of $425,000 for the
purchase of hovermatt slings and other equipment and supplies for the Contra Costa Regional Medical
Center (CCRMC) with no change in the original term of December 1, 2016 through November 30, 2019.
FISCAL IMPACT:
100% funding is included in the Hospital Enterprise Fund I Budget. The equipment is estimated to pay for
itself within three years due to the reduction of injuries and lost work hours.
BACKGROUND:
Hovertech International provides hovermatts, hovermatt slings and other products for moving patients. The
use of these products is now mandated by law in order to reduce the possibility of injuries to staff while
moving patients. The first year trial was so successful that the equipment is being obtained for more units at
CCRMC and, therefore, it is necessary to add money to the purchase order.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jaspreet Benepal,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm, Patty Derose
C. 41
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Amendment to Purchase Order with D.T. Davis Enterprises, LTD. (dba Hovertech International)
October 16, 2018 BOS Minutes 250
CONSEQUENCE OF NEGATIVE ACTION:
If this Purchase Order amendment is not approved CCRMC and the Contra Costa Health Centers will have
much more difficulty in moving patients and increase the risk of staff injuries.
October 16, 2018 BOS Minutes 251
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent to execute, on behalf of the Health Services Director,
an amendment to Purchase Order #F11121 with Sanofi Pasteur, Inc., to increase the payment limit by
$150,000 to a new payment limit of $375,000, for the purchase of vaccines and injectable medications at
Contra Costa Regional Medical Center (CCRMC) and Health Centers, for the period from January 1, 2018
through December 31, 2018.
FISCAL IMPACT:
100% funding is included in the Enterprise Fund I budget.
BACKGROUND:
Sanofi Pasteur, Inc. furnishes pharmaceuticals for patient care provided at CCRMC and Health Centers.
These vaccines and other injectable medications are essential in patient care. We have been purchasing
vaccines and other injectable medications from Sanofi Pasteur since 2007.
CONSEQUENCE OF NEGATIVE ACTION:
If this purchase order is not approved, CCRMC will not be able to provide needed vaccines and other
pharmaceutical products to the patient population at CCRMC and Health Centers. As a health care
organization, CCRMC must provide needed vaccinations to the patient population in order to prevent
disease, as well as prevent the spread of disease.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jaspreet Benepal,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Tasha Scott, Marcy Wilhelm, Irene Segovia
C. 42
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Amendment to Purchase Order with Sanofi Pasteur, Inc.
October 16, 2018 BOS Minutes 252
October 16, 2018 BOS Minutes 253
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee, to execute, on behalf of the
County Contract #77-185 with South Springs Home Health Care, Inc., a corporation, in an amount not to
exceed $350,000 to provide home health care services for Contra Costa Health Plan (CCHP) members for
the period from October 1, 2018 through September 30, 2020.
FISCAL IMPACT:
This contract is funded 100% by CCHP Enterprise Fund II.
BACKGROUND:
Under Contract #77-185, the Contractor will provide home health care services to CCHP members for the
period October 1, 2018 through September 30, 2020.
CONSEQUENCE OF NEGATIVE ACTION:
If this contract is not approved, CCHP members will not have access to the home health care services from
the Contractor.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: K Cyr, M Wilhelm
C. 43
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Contract #77-185 with South Springs Home Health Care, Inc.
October 16, 2018 BOS Minutes 254
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Purchasing Agent to amend a purchase order, on behalf of the
Employment and Human Services Department, with Kompan Playgrounds, Inc. to increase the payment
limit by $99,000 from $150,000 for a new payment limit not to exceed $249,000 for playground equipment
at county childcare centers and to extend the term from January 31, 2019 to January 31, 2020.
FISCAL IMPACT:
This action increases purchase order #011831 by $150,000 to a total amount of $249,000. The cost increase
is covered by the Bureau's Federal Head Start funding.
BACKGROUND:
Kompan collaborates with designers and city developers to deliver fun and intelligent solutions for children
who have limited time for physical activities. This request is to increase the payment limit and extend the
term of the purchase order to cover additional costs for playground installations, at additional facilities. The
two playground installations currently in progress are at an estimated cost of $94,000. A few smaller scale
playground projects to meet the need for age appropriate playground equipment for toddlers, are pending.
These additional projects are needed to ensure all playground equipment at county-run facilities meet Title
22 childcare requirements. Kompan certifies that all installed playgrounds meet nationally recognized
ASTM testing standards and criteria, to reduce the risk of life threatening and debilitating injuries.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: CSB, (925) 681-4267
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Nasim Eghlima, Adriana Arco, Haydee Ilan
C. 44
To:Board of Supervisors
From:Kathy Gallagher, Employment & Human Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Change to Purchase Order #011831 with Kompan Playgrounds, Inc.
October 16, 2018 BOS Minutes 255
CONSEQUENCE OF NEGATIVE ACTION:
Without the increased purchase order, Early Head Start child care enters would not adequately meet the
age appropriate needs of infant-toddler aged children.
ATTACHMENTS
October 16, 2018 BOS Minutes 256
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Employment and Human Services Director, or designee, to execute a
contract with Orantes, LLC dba Tiny Toes Preschool, in an amount not to exceed $107,000 to provide Early
Head Start Childcare Partnership program services, for the period April 1, 2018 through June 30, 2019.
FISCAL IMPACT:
This contract is 100% funded by federal grant funds from the Administration for Children and Families,
Head Start Program. There is no County match requirement.
[CFDA 93.600]
BACKGROUND:
Contra Costa County receives funds from the U.S. Department of Health and Human Services,
Administration for Children and Families (ACF) to provide Head Start and Early Head Start program
services to program eligible County residents. The Employment and Human Services Department, in turn,
contracts with a number of community-based organizations to provide a wider distribution of services. This
contract is to provide 8 Early Head Start program slots for children ages birth to 3 years. The contract also
provides start up funding in the amount of $10,000 and program improvement funding in the amount of
$32,000. The program improvement funding is a one time allocation for facilities improvements.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: CSB (925) 681-6334
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: Nelly Ige, Haydee Ilan
C. 45
To:Board of Supervisors
From:Kathy Gallagher, Employment & Human Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:2018-19 Orantes, LLC Childcare Services Contract
October 16, 2018 BOS Minutes 257
CONSEQUENCE OF NEGATIVE ACTION:
If not approved, the County will not be able to fund additional childcare slots and provide start up funds for
it's community based agency partner, Orantes, LLC.
CHILDREN'S IMPACT STATEMENT:
The Employment and 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.
October 16, 2018 BOS Minutes 258
RECOMMENDATION(S):
APPROVE and AUTHORIZE the Health Services Director, or designee, to execute on behalf of the
County Contract #26-511-2, the Unpaid Student Training Agreement with Napa Valley Community College
District, an educational institution, to provide supervised field instruction at Contra Costa Regional Medical
Center for its Contractor’s respiratory therapy students for the period from October 1, 2018 through
September 30, 2023.
FISCAL IMPACT:
This is a non-financial agreement.
BACKGROUND:
The purpose of this agreement is to provide Napa Valley Community College District respiratory therapy
with the opportunity to integrate academic knowledge with applied skills at progressively higher levels of
performance and responsibility. Supervised fieldwork experience for students is considered to be an integral
part of both educational and professional preparation. The Health Services Department can provide the
requisite field education, while at the same time, benefit from the students’ services to patients.
Under Unpaid Student Training Agreement #26-511-2, Napa Valley Community College District will
receive supervised fieldwork instruction experience, at the Contra Costa Regional Medical Center and
Health Centers, through September 30, 2023.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jaspreet Benepal,
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Laura Cassell, Deputy
cc: D Morgan, M WILHELM
C. 46
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Unpaid Student Training Agreement #26-511-2 with Napa Valley Community College District
October 16, 2018 BOS Minutes 259
October 16, 2018 BOS Minutes 260
CONSEQUENCE OF NEGATIVE ACTION:
If this contract is not approved, the students will not receive supervised fieldwork instruction experience at
the Contra Costa Regional Medical Center and Health Centers.
October 16, 2018 BOS Minutes 261
RECOMMENDATION(S):
ACCEPT the Annual Post-Consent Decree EEO Strategic Outreach and Department Specific Goals Report.
FISCAL IMPACT:
None
BACKGROUND:
In April of 2014, the Human Resources Department convened a Recruitment Opportunities Work Group
consisting of representatives from the Human Resources Department, Office of the County Counsel, and
the Affirmative Action/Equal Employment Opportunity Officer. The County Administrator tasked the
Work Group with establishing a post-Consent Decree framework to ensure that the County workforce
reflects the diversity of the County and provides equal employment opportunities for all qualified persons
seeking employment with the County and districts governed by the Board of Supervisors; evaluating ways
in which the diversity of the County work force can be enhanced with targeted recruitments; and improving
the County’s
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Antoine Wilson,
925-335-1455
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
C. 47
To:Board of Supervisors
From:HIRING OUTREACH OVERSIGHT COMMITTEE
Date:October 16, 2018
Contra
Costa
County
Subject:EEO Annual Outreach and Recruitment Report
October 16, 2018 BOS Minutes 262
BACKGROUND: (CONT'D)
outreach efforts.
The Work Group recommended to the Hiring Outreach Oversight Committee an Equal Employment
Opportunity Plan that included pro-active measures to promote a workplace that is reflective of the
communities we serve and values the diversity of its employees. These proactive measures are two-fold;
1) Strategic Outreach emphasizing under-represented groups with specific efforts made to the following
populations: Veterans, Disabled, AB109, Re-entry, Women and Minorities; and 2) Department Specific
EEO Plans that are developed to address under-representation of ten percent (10%) or more in the
following self-identifying categories: Male, Female, Asian, Black, Hispanic, White, American
Indian/Alaska Native, Native Hawaiian and Pacific Islander, and two or more races.
The specific outreach efforts are modified annually by the County’s EEO Officer to reflect the Board of
Supervisor’s strategic outreach efforts and the County’s workforce statistics. Departments experiencing
an under-representation of ten percent (10%) or more in the identified categories will report to the
Hiring Outreach Oversight Committee at the beginning of each fiscal year on: 1) the details of their EEO
Plan; and 2) the results of their efforts to reduce the under-utilization in identified categories during the
previous fiscal year. On October 1, 2018, EEO presented the annual report to the Hiring Outreach
Oversight Committee which was reviewed and approved.
CONSEQUENCE OF NEGATIVE ACTION:
The County will not be proactive in reaching out to qualified underrepresented groups within our
workforce to bolster and diversify our applicant pool, which could result in discrimination complaints
and lawsuits.
ATTACHMENTS
Annual EEO Outreach and Recruitment Report
October 16, 2018 BOS Minutes 263
CONTRA COSTA COUNTY
OFFICE OF EQUAL EMPLOYMENT
OPPORTUNITY
FY 2017-2018 OUTREACH REPORT
FY 2018-2019 OUTREACH PLANS
October 16, 2018 BOS Minutes 264
i
TABLE OF CONTENTS
Hiring Outreach Oversight Committee Report 1
Contra Costa County
2017 Outreach Cover Page 9
2017 Outreach Data 11
Department of Agriculture/Weights & Measures
2017 Outreach Cover Page 13
2017 Outreach Data 14
FY 2018-2019 Outreach and Recruitment Plan 16
Animal Services Department
2017 Outreach Cover Page 18
2017 Outreach Data 19
FY 2018-2019 Outreach and Recruitment Plan 21
Office of the Assessor
2017 Outreach Cover Page 24
2017 Outreach Data 25
FY 2018-2019 Outreach and Recruitment Plan 27
Office of the Auditor-Controller’s Office
2017 Outreach Cover Page 29
2017 Outreach Data 30
FY 2018-2019 Outreach and Recruitment Plan 32
Department of Child Support Services
2017 Outreach Cover Page 34
2017 Outreach Data 35
FY 2018-2019 Outreach and Recruitment Plan 37
Clerk Recorder – Elections Department
2017 Outreach Cover Page 39
2017 Outreach Data 40
FY 2018-2019 Outreach and Recruitment Plan 42
Conservation and Development
2017 Outreach Cover Page 44
2017 Outreach Data 45
FY 2018-2019 Outreach and Recruitment Plan 47
October 16, 2018 BOS Minutes 265
ii
County Administrator’s Office
2017 Outreach Cover Page 50
2017 Outreach Data 51
FY 2018-2019 Outreach and Recruitment Plan 53
Office of the County Counsel
2017 Outreach Cover Page 56
2017 Outreach Data 57
FY 2018-2019 Outreach and Recruitment Plan 59
District Attorney’s Office
2017 Outreach Cover Page 61
2017 Outreach Data 62
FY 2018-2019 Outreach and Recruitment Plan 64
Employment and Human Services
2017 Outreach Cover Page 70
2017 Outreach Data 71
FY 2018-2019 Outreach and Recruitment Plan 73
Contra Costa County Fire Protection Districts
2017 Outreach Cover Page 76
2017 Outreach Data 77
FY 2018-2019 Outreach and Recruitment Plan 79
Health Services Department
2017 Outreach Cover Page 82
2017 Outreach Data 83
FY 2018-2019 Outreach and Recruitment Plan 85
Human Resources Department
2017 Outreach Cover Page 87
2017 Outreach Data 88
FY 2018-2019 Outreach and Recruitment Plan 90
Contra Costa County Library
2017 Outreach Cover Page 92
2017 Outreach Data 93
FY 2018-2019 Outreach and Recruitment Plan 95
Probation
2017 Outreach Cover Page 98
October 16, 2018 BOS Minutes 266
iii
2017 Outreach Data 99
FY 2018-2019 Outreach and Recruitment Plan 101
Department of Public Defender
2017 Outreach Cover Page 103
2017 Outreach Data 104
FY 2018-2019 Outreach and Recruitment Plan 106
Department of Public Works
2017 Outreach Cover Page 108
2017 Outreach Data 109
FY 2018-2019 Outreach and Recruitment Plan 111
Office of the Sheriff
2017 Outreach Cover Page 114
2017 Outreach Data 115
FY 2018-2019 Outreach and Recruitment Plan 117
Office of the Treasurer/Tax Collector
2017 Outreach Cover Page 119
2017 Outreach Data 120
FY 2018-2019 Outreach and Recruitment Plan 122
Veterans Service Office
2017 Outreach Cover Page 125
2017 Outreach Data 126
FY 2018-2019 Outreach and Recruitment Plan 128
October 16, 2018 BOS Minutes 267
1
BACKGROUND
In April of 2014, the Human Resources (HR) Department convened a Recruitment Opportunities Work
Group consisting of representatives from the Human Resources Department, Office of the County
Counsel, and the Office of Equal Employment Opportunity (EEO). The County Administrator tasked the
group with establishing a post-Consent Decree framework to ensure that the County’s workforce
reflected the demographics of the communities we serve. Outreach was created to explore new and
innovative ways to reach people who are under-represented1 in the County’s workforce. The goal is to
provide equal employment opportunities for all qualified persons seeking employment with the County
and special districts governed by the Board of Supervisors.
On July 1, 2015, the County implemented its outreach an d recruitment plans for Fiscal Year (FY) 15-
16. The goals of the plans were to promote equity and inclusion throughout the County’s workforce.
County departments along with EEO were instructed to conduct strategic outreach and recruitment
efforts, which were specifically designed to reach qualified under-represented groups within the
constituents we serve.
METHODOLOGY
In order to determine under-representation in each department, the EEO Officer annually compares the
County’s workforce data to the availability of qualified people who reside in the local labor market and
are 16 years or older. The County’s workforce data within this report is derived from employment
records from the Human Resources database. The local labor market data is compiled by the 2 010
United States Department of Census Bureau (Census) using the Equal Employment Opportunity
Tabulation (EEO Tabulation), which is a benchmark for comparing the gender and racial makeup of an
organization's workforce. It examines labor force diversity u sing Census data and is produced for
federal agencies responsible for monitoring employment practices and enforcing civil rights laws for the
workforce.
The current County reporting format showcases the use of statistical data to determine under -
representation within the department as a whole. EEO conducted utilization analysis by race and
gender as defined by the occupational categories within each department. An occupational category
is a broad grouping of job classes which require similar levels of skill and training. The analysis relies
on subtraction: the percentage of employees in the business's workforce in a particular job category,
cross-classified by race, national origin and sex, minus the percentage of workers in the same job
category in the relevant labor market, also cross-classified by race, national origin and sex2. For
example, if the business's Workforce Analysis Chart shows 40 percent Asian males in the Professionals
job category, and if the community labor statistics table shows t hat in the relevant labor market, 20
percent of Professionals are Asian males, then the business is underusing Asian males in the job
category by 20 percent.
1 Dictionary.com defines underrepresentation as giving inadequate representation to; represent in numbers that are disproportionately low.
2 As defined by the Department Of Justice Office of Justice Programs Equal Employment Opportunity Plans
October 16, 2018 BOS Minutes 268
2
TOTAL COUNTY WORKFORCE
As of December 31, 2017, Contra Costa County employed 91 76 employees. Each department with
underrepresentation of 10% or more in the gender , race and /or ethnicity3 categories is required to
create a strategic outreach and recruitment plan which addresses the deficiencies and outreach
needed. Representation rates, which are presented in percentages, are estimated indicators of
whether or not a particular racial/ethnic or gender group is represented at a level comparable to the
group’s existence in the labor market. Departments provide steps that will be taken to assist in
increasing the applicant flow of qualified individuals for the under -represented group(s). The County’s
job classes are determined by HR and assigned to an occupational category based upon the United
States Equal Employment Opportunity Commission’s defini tions4.
Applicant flow analysis is an important component of outreach that helps the County determine the
success of its outreach program. Applicant flow is the analysis of selection rate adjustments for a
particular job and is used for record keeping a nd statistical purposes5. Employers are to provide
applicants the option to self -identify or decline to submit the supplemental classification information
which identifies gender, race and/or ethnicity. If an individual declines to self -identify, the individual’s
reporting data will not be included in the final tally.
The departments are required to reach out to individuals depending on where their under-
representation exists. Each racial, ethnic and gender category is separate from the other and requires
departments to participate in outreach to all groups where it has been determined that low
representation exists.
As the County’s EEO Officer, I am responsible for conducting outreach efforts to community based
organizations (cbos). The outreach efforts place an emphasis on attracting under-represented groups
within the County’s workforce through ongoing marketing efforts. It is designed to meet them at the
transaction level and provide County employment information to management teams, rank and file
employees and the agency’s clientele.
Community outreach is an important part of EEO’s strategic plan to help the County reach underserved
populations. Our plan is to bring the County and the community together to help eradicate barriers to
employment. In order to make this endeavor successful, we must build stronger relationships with one
another. It is important for our communities to know who the County is and what we have to offer them.
Outreach is specific to organizations whose clientele con sists of veterans, women, disabled, re-entry,
low income, faith-based, Hispanics, Blacks, Asians, and the homeless. From July 1, 2017 through
June 30, 2018, EEO conducted nearly 500 outreach and recruitment efforts, which included meetings,
teleconferences and seminars with agency staff and/or clients from organizations listed on the next
page.
3 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used
interchangeably.
4 See Page 9-10 of this report for the definitions of the 8 occupational categories.
5 All institutions receiving federal contracts are obligated by federal law to track gender and race data for all candidates submitting applications for employment to the
business. By law, the information cannot be a component of the employment determination, nor can it be used for consideration.
October 16, 2018 BOS Minutes 269
3
Organization Contacts Outreach Efforts
ANKA Behavioral Health Kimberly Sayer 26
Asian Pacific Environmental
Network Puja Duhal 9
Bay Area Peacekeepers Gonzalo Rucobo 7
Bay Area Rescue Mission Jonathan Russell 9
Beat the Streets, Inc. Tracey Tate-Jones 7
Community Housing
Development Janine Shaheed 21
Contra Costa Food Bank
Caitlin Sly
Larry Sly 41
Contra Costa Interfaith Housing Deane Pearn 8
Del Valley Education Center Daryl Coachman 4
Department of Rehabilitation Erica Watkins 10
Futures Explored Jenny McKeon 21
Health Right 360 Edina Rahmanovic 10
Home Base Erica McWhorter 17
Lao Family Community
Development Brad Meyer 11
Latina Center
Miriam Wong
Gloria Alvarez 5
Los Medanos College
Prof. Sylvester Henderson
Rachel Anicetti 4
Men and Women of Purpose Antwoin Cloird 6
Men and Women of Valor Pamela Saucer-Bilbo 14
Monument Impact Elba Velasquez 20
New Life Church
Family Worship Center Mark Hernandez 2
Opportunity Junction Shannel Arce 19
Reach Project, Inc. Mickie Marchetti 15
October 16, 2018 BOS Minutes 270
4
Richmond Emergency
Food Pantry Patricia Davidson 7
Rubicon Tracey Rodarte Young 12
Concord Goodwill Jerry Jones 13
Eastbay Goodwill
Nicole Scales(Richmond) &
Glory Pastrana(Antioch) 48
Salvation Army Cynthia Hodges 6
San Pablo Economic
Development Corp. Leslie Choy 17
Shelter Inc. Lindsey Drolette 8
Shepherds Gate Taryn Schuck/Mary Norcross 10
St. Vincent de Paul Melanie Benitez 5
Stand! For Families Angela Sanchez 3
Trends Narda Mamou 5
Victory Outreach Richmond Curtis Royster 7
Village Community
Resource Center Beth Leverich 3
Pittsburg Baptist Church Pastor Edward Lemons 3
October 16, 2018 BOS Minutes 271
5
FY 2018- 2019 OUTREACH PLAN
The County relies on each department to outreach to its under-represented groups within the workforce
to diversify our applicant flow. Applicant flow helps to measure how fair and inclusive our outreach
programs are. It helps the County to review and determine if past outreach practices were proactiv e,
strategic, and effective. It also assists the County in removing barriers. The County’s applicant flow
pipeline is broken into 5 categories listed below. For FY 17-18, The County received 26,822
applications whereas in FY 15-16, the County received 24,843 applications. Tables 1 and 2 indicate
where the applicant heard about the job opportunity.
OUTREACH DISTRIBUTION
TABLE 1
FY 15-16
TABLE 2
FY 17-18
64%
29%
4%2%1%
HR Careers Website 64%
CBO's 29%
Advertisements 4%
Job Hotline 2%
Walk-in 1%
58%
34%
5%
1%1%
HR Website 58%
CBO's 34%
Advertisement 5%
Job Hotline 1%
Walk-In 1%
October 16, 2018 BOS Minutes 272
6
Tables 1 and 2 illustrate the County’s outreach and recruitment efforts over the last three fiscal years.
The tables show that the County’s community based outreach increased our applicant flow by 5%
during the relevant time. We attribute this increase to the partnerships that have been developed and
nurtured over the last several years by the County departments, HR and EEO with the communities
that we serve.
The number of applicants who self-identified their gender, race and/or ethnicity for FY15-16 was 27,217.
The number of applicants who self-identified their gender, race and/or ethnicity for FY17-18 was 26,822.
The gender and racial/ethnicity makeup for applications received are listed below:
TABLE 3
APPLICANT FLOW
Table 3 illustrates the applicant flow by gender and race that reveals the following:
The participation of males who submitted applications increased from 33% in FY14-15 to 40%
in FY17-18.
The participation of females who submitted applications decreased from 62% in FY14 -15 to
57% in FY17-18.
The participation of whites who submitted applications remained steady at 30%.
The participation of blacks who submitted applications decreased from 23% in FY14-15 to 21%
in FY17-18.
The participation of Hispanics who submitted remained steady at 20%
The participation of Asians who submitted applications decreased from 16% in FY14-15 to
15% in FY17-18.
NHPI, AIAN and two or more races categories were not tracked prior to the last fiscal year.
33%
62%
30%
23%20%
16%
40%
57%
30%
21%20%
15%
2%1%
7%
0%
10%
20%
30%
40%
50%
60%
70%
Males Females White Black Hispanic Asian NHPI AIAN 2 or more
races
FY 14-15 FY 17-18
October 16, 2018 BOS Minutes 273
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NEW HIRE DATA BY GENDER
FY 14-15 AND FY 17-18
TABLE 4
The percentages of males who were hired decreased from 36% in FY14-15 to 31% in FY17-
18.
The percentages of females who were hired increased from 64% in FY14-15 to 69% in FY17-
18.
CONTRA COSTA COUNTY NEW HIRE DATA
BY RACE
FY 14-15 AND FY 17-18
TABLE 5
Male Female
FY 14-15 36%64%
FY 17-18 31%69%
36%
64%
31%
69%
0%
10%
20%
30%
40%
50%
60%
70%
80%
90%
100%
FY 14-15
FY 17-18
44%
18%18%20%
40%
17%19%
24%
0 1%2%
0%
5%
10%
15%
20%
25%
30%
35%
40%
45%
50%
Whites Blacks Hispanics Asian AIAN NHPI 2 or more races
FY 14-15
FY 17-18
October 16, 2018 BOS Minutes 274
8
Table 5 illustrates the percentages of people hired during FY 14-15 and FY 17-18 based on
race/ethnicity. The statistical analysis is listed below:
The hiring of Whites decreased from 44% in FY 14-15 to 40% in FY 17-18.
The hiring of Blacks decreased from 18% in FY 14-15 to 17% in FY 17-18.
The hiring of Hispanics increased from 18% in FY 14-15 to 19% in FY 17-18.
The hiring of Asians increased from 20% in FY 14-15 to 24% in FY 17-18.
These trends continue to stress the importance for the County to continue its outreach efforts. EEO is
committed to increasing the participation rates of qualified under-represented groups in our applicant
pool. The areas of opportunities and improvement are:
Continue working with CCTV to establish a social media page.
Conducting more outreach to professional organizations, universi ties, community colleges and
faith based organizations to increase participation in the County’s hiring process.
Create additional marketing tools such as brochures and power point presentations, which are
designed to reach under-represented groups.
Continue providing additional training to the departmental EEO Coordinators to help them to
become more knowledgeable of targeted outreach, under-representation, more effective
outreach plans and hiring. The trainings will occur at the EEO’s quarterly meetings.
Meeting with cbos to determine their needs and address them during presentations.
CONCLUSION
The data presented in this report provides the County stakeholders, managers, employees and the
public detailed information regarding the County’s outreach and recruitment efforts. Although we have
made strides towards achieving workforce equity, there are areas that still need to be addressed. One
area of note is the equitable distribution of jobs.
It is important that we continue to promote and enforce equal employment opportunities for all who
apply for vacant positions. EEO and the departments will continue to work with cbos, colleges,
universities and professional organizations to attract qualified candidates to help the County attain
equity and inclusion within our workforce.
October 16, 2018 BOS Minutes 275
9
CONTRA COSTA COUNTY
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the County,
as a whole, improved its workforce representation in eight areas. Improvements, which are highlighted,
were made to the Officials and Administrators (Females and Whites), Professionals (Males), Technical
(Males, Whites), Administrative Support (Males and Hispanics), Service Maintenance (Females and
Hispanics), Skilled Craft (Females, Whites, and Blacks), Protective Service Worker Sworn (Females,
Blacks and Hispanics) and Protective Service Worker Non-Sworn (Females, Blacks and Hispanics)
occupational categories. The job categories and definitions are listed below.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 1% 5%
Professionals 1%
Technicians 8% 1% 1%
Administrative Support 2% 1%
Service Maintenance 4% 4%
Skilled Craft 1% 2% 2%
Protective Service Worker
(Sworn) 6% 13% 2%
Protective Service Worker
(Non-Sworn) 3% 1% 5%
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training or through work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public such as maintenance workers
and custodians.
Skilled Crafts: Occupations in which workers perform jobs which require special manual skill and
a thorough and comprehensive knowledge of the processes involved such as electricians and tree
trimmers.
October 16, 2018 BOS Minutes 276
10
Protective Service Workers (Sworn): Occupations in which workers are entrusted with public
safety, security and protection from destructive forces.
Protective Service Workers (Non-Sworn): Occupations that perform technical and support work
in safety or law enforcement work, which does not require a sworn person. Examples include
community service officers and animal control officers.
October 16, 2018 BOS Minutes 277
11
CONTRA COSTA COUNTY
2017 OUTREACH AND RECRUITMENT DATA
9176 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce6
Male
(%)
Female
(%)
Census Data by Job
Category
Officials and Administrators
Census Data X 58 42 82,930
County Workforce 329 33 67 X
Underrepresentation X 25 X X
Professionals
Census Data X 46 54 108,045
County Workforce 3296 30 70 X
Underrepresentation X 16 X X
Technicians
Census Data X 51 49 13,265
County Workforce 937 44 56 X
Underrepresentation X 7 X X
Administrative Support
Census Data X 38 62 141,985
County Workforce 3135 16 84 X
Underrepresentation X 22 X X
Service Maintenance
Census Data X 58 42 122,730
County Workforce 369 68 32 X
Underrepresentation X X 10 X
Skilled Craft
Census Data X 95 5 41,025
County Workforce 67 99 1 X
Underrepresentation X X 4 X
Protective Services (Sworn)
Census Data X 82 18 9,480
County Workforce 772 80 20 X
Underrepresentation X 2 X X
Protective Services (Non-Sworn)
Census Data X 54 46 810
County Workforce 279 64 36 X
Underrepresentation X X 10 X
6 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 278
12
CONTRA COSTA COUNTY
2017 OUTREACH AND RECRUITMENT DATA
9176 EMPLOYEES
RACES AND ETHNICITY
Demographics by
Race and Ethnicity7
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or More
Races
(%)
Officials and Administrators
Census Data 66 7 10 14 1 0 2
County Workforce 67 13 10 4 1 0 5
Underrepresentation X X 0 10 0 0 X
Professionals
Census Data 60 7 9 21 0 0 2
County Workforce 47 14 13 15 0 0 10
Underrepresentation 13 X X 6 0 0 X
Technicians
Census Data 51 7 10 27 0 1 2
County Workforce 40 16 19 16 1 1 9
Underrepresentation 11 X X 11 X 0 X
Administrative Support
Census Data 53 10 19 15 1 0 2
County Workforce 37 20 28 8 1 1 7
Underrepresentation 16 X X 7 0 X X
Service Maintenance
Census Data 33 10 42 12 0 0 1
County Workforce 32 19 33 12 1 1 3
Underrepresentation 1 X 9 0 X X X
Skilled Craft
Census Data 49 6 35 7 1 0 1
County Workforce 66 6 15 7 0 3 3
Underrepresentation X 0 20 0 1 X X
Protective Services (Sworn)
Census Data 53 15 15 10 3 0 3
County Workforce 64 20 16 8 1 1 1
Underrepresentation X X X 2 2 X 2
Protective Services (Non-Sworn)
Census Data 65 1 22 8 0 0 5
County Workforce 42 26 24 4 1 1 2
Underrepresentation 23 X X 4 X X 3
7 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 279
13
AGRICULTURE/WEIGHTS & MEASURES
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
data to help determine the effectiveness of the County’s outreach program. The data shows that the
Department of Agriculture improved its representation in three areas. Improvements were made to the
Professionals (Females), Technicians (Males, Blacks and Hispanics) and Service Maintenance
(Females and Whites) occupational categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training or through work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public such as maintenance workers
and custodians.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators
Professionals 62%
Technicians 14% 9% 4%
Administrative Support
Service Maintenance 5% 7%
October 16, 2018 BOS Minutes 280
14
AGRICULTURE/WEIGHTS & MEASURES
2017 OUTREACH AND RECRUITMENT DATA
46 EMPLOYEES
GENDER
Demographics
By Gender
Total Department
Workforce8
Male
(%)
Female
(%)
Census Data by
Job Category
Officials and Administrators
Census Data X 58 42 82,930
County Workforce 1 100 0 X
Underrepresentation X X 42 X
Professionals
Census Data X 46 54 108,045
County Workforce 8 38 62 X
Underrepresentation X 8 X X
Technicians
Census Data X 51 49 13,265
County Workforce 13 85 15 X
Underrepresentation X X 34 X
Administrative Support
Census Data X 38 62 141,985
County Workforce 3 0 100 X
Underrepresentation X 38 X X
Service Maintenance
Census Data X 58 42 122,730
County Workforce 21 62 38 X
Underrepresentation X X 4 X
8 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 281
15
AGRICULTURE/WEIGHTS & MEASURES
2017 OUTREACH AND RECRUITMENT DATA
46 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity9
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or more
Races
(%)
Officials and Administrators
Census Data 66 7 10 14 1 0 2
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 7 10 14 1 0 2
Professionals
Census Data 60 7 9 21 0 0 2
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 7 9 21 0 0 2
Technicians
Census Data 51 7 10 27 0 1 2
County Workforce 38 23 23 8 0 0 8
Underrepresentation 13 X X 19 0 1 X
Administrative Support
Census Data 53 10 19 15 1 0 2
County Workforce 67 0 0 0 0 33 0
Underrepresentation X 10 19 15 1 X 2
Service Maintenance
Census Data 33 10 42 12 0 0 1
County Workforce 56 5 19 10 0 5 5
Underrepresentation X 5 23 2 0 X X
9 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexi can, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 282
16
AGRICULTURE / WEIGHTS AND MEASURES
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintaining a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31, 2017,
the County’s workforce statistical data indicate the following:
Females are underrepresented in Officials and Administrators and Technicians
positions
Males are underrepresented in Administrative Support positions
Whites are underrepresented in Technicians positions
Blacks are underrepresented in Officials and Administrators, Professionals, and
Administrative Support positions
Hispanics are underrepresented in Officials and Administrators, Professionals,
Administrative Support, and Service Maintenance positions
Asians are underrepresented in Officials and Administrators, Profes sionals,
Technicians, and Administrative Support positions
We can only hire people licensed to do work in the majority of the positions in our
department. All of our technicians (Biologists and Weights and Measures Inspectors),
professionals, and officials and administrators require specific state licensing. When we
are recruiting for our Biologists, Inspectors and supervisors, job announcements are sent
to every qualified and licensed individual, which ensures that we are reaching the
broadest qualified candidate pool possible. We get this list from the California
Department of Food and Agriculture County Liaison office every time we have an opening.
For job positions where state licensing is not required we will do more outreach in the
community.
.
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting specific outreach and recruitment efforts to candidates who meet the minimum
qualifications by encouraging them to apply for the vacant positions within the Agriculture
/Weights and Measures Department.
Message: The Agriculture / Weights and Measures Department will target outreach efforts to online
websites that serve underrepresented groups. We will electronically send these
October 16, 2018 BOS Minutes 283
17
organizations open vacancies within the department during the fiscal year. This proactive
measure will help to create a more diverse applicant pool of qualified candidates to apply
for departmental vacancies.
Tools: The Agriculture department will disseminate information to the genera l public through our
website as well as local community colleges and universities to get more people aware
of what the Agriculture department does and what they need to do to be qualified to apply
to the department. We will continue to utilize websites ge ared towards helping
underrepresented people find employment when possible. When hiring for our licensed
positions, the department gets a list of all licensees and ensures that everyone who is
qualified receives notification of the job opening and how to apply.
Message Distribution
Contact: Ralph Fonseca, Agricultural Biologist/Weights and Measures Inspector III
ralph.fonseca@ag.cccounty.us
STRATEGY
ELEMENT
TASKS
Research employment
websites and register to join
the online community.
Internet/Computer Register with websites such
as womenforhire.com
Increase awareness about
the different positions in our
department and what the job
qualifications for those
positions are and how to get
those qualifications.
Internet/Computer Keep information updated for
job qualifications, job
descriptions, and licensing
information to our
department’s website.
Target all underrepresented
that possess a state
inspector/biologist license,
weights and measures
inspector license, and
supervisory licensing.
Personal contact Mail or email all job
announcements to all
qualified individuals in order
to expand the opportunity for
qualified females.
Network with local
Community Colleges and
Universities to increase the
applicant pool and explain
the Department of
Agriculture and Weights
recruitment mission and
goals.
Personal
contact/publications
Develop content that
highlights what the
department does and the
employment opportunities.
Reach out to Academic
Career Advisors and Alumni
Relations at Cal State East
Bay, UC Davis, Cal State
San Luis Obispo.
October 16, 2018 BOS Minutes 284
18
ANIMAL SERVICES
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Animal
Services improved its workforce representation in five areas. Improvements were made to the Officials
and Administrators (Females and Whites), Professionals (Males, Hispanics and Asians), Technical
(Males, Blacks, Hispanics anad Asians), Administrative Support (Males and Hispanics), and Service
Maintenance (Males and Hispanics) occupational categories. The job categories and definitions are
listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultatio n on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training or through work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public such as maintenance workers
and custodians.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 60% 60%
Professionals 25% 13% 13%
Technicians 12% 9% 7% 6%
Administrative Support 1% 13%
Service Maintenance 2% 18%
October 16, 2018 BOS Minutes 285
19
ANIMAL SERVICES
2017 OUTREACH AND RECRUITMENT DATA
84 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce10
Male (%) Female (%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 5 40 60 X
Underrepresentation X 18 X X
Professionals
Working-Age Population X 46 54 108,045
County Workforce 8 75 25 X
Underrepresentation X X 29 X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 33 45 55 X
Underrepresentation X 6 X X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 21 5 95 X
Underrepresentation X 33 X X
Service Maintenance
Working-Age Population X 58 42 122,730
County Workforce 17 53 47 X
Underrepresentation X 5 X X
10 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 286
20
ANIMAL SERVICES
2017 OUTREACH AND RECRUITMENT DATA
84 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and
Ethnicity11
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
2 or more
Races
(%)
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 60 0 40 0 0 0 0
Underrepresentati
on
6 7 X 14 1 0 2
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 75 0 13 13 0 0 0
Underrepresentati
on
X 7 X 8 0 0 2
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 58 9 24 6 3 0 0
Underrepresentati
on
X X X 21 X 1 2
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 57 5 24 5 5 0 5
Underrepresentati
on
X 5 X 10 X X X
Service Maintenance
Working-Age
Population
33 10 42 12 0 0 1
County Workforce 41 6 41 6 0 6 0
Underrepresentati
on
X 4 1 6 0 X 1
11 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 287
21
ANIMAL SERVICES
OUTREACH AND RECRUITMENT PLAN
FY 2018- FY 2019
Issue: As of December 31, 2017, the Animal Services Department’s statistical dat a presented
an under-representation for Males at 18% in the Officials & Administrators and 33% in the
Administrative Support job categories. Females are under-represented 29% in the
Professionals job category. The Animal Services Department also presented under-
representation of African Americans at up to 7% in both the Officials and Administrators
and Professionals job categories, along with Asians at 14% in the Officials and
Administrators, 21% in the Technician, and 10% in the Administrative Support job
categories.
Objective: Increase outreach to the local minority workforce population, specifically for under -
represented areas within the Animal Service Department divisions. The Animal Services
Department will continue to create positive and sustainable partnerships with the local
Community College District and Community Based Organizations (CBOs) to ensure that
the department informs the community on department vacancies.
Message: The Animal Services Department will become an active partner in the commu nity by
establishing strong relationships with County and community vocational programs on all
department career opportunities.
Tools: Continually update Animal Services website.
Utilize Animal Services Social Media websites.
Attend and participate in local job and community events.
Distribute department brochures and literature.
October 16, 2018 BOS Minutes 288
22
Message Distribution
STRATEGY
ELEMENT
TASKS
Participate in community
events and job fairs.
Outreach &
Engagement
ASD will continue to participate in local
community events that target underserved
populations.
Community Events:
Bark in the Park, Brentwood CA
Safety Fairs, County Wide
Road Runner Run Club, Pleasant Hill
CA
Veteran’s Stand Down, Antioch CA
Project Homeless Connect
and other scheduled community events
posted on the Department’s website
Job Fairs:
Contra Costa County Workforce
Development Board Job Fairs
Police Academies
Establish competitive
salaries for Animal Services
Field Operations unit.
Economic The Animal Services Department (ASD) has
implemented recruitment locations to increase
job announcement views to increase applicant
pools. ASD established an external
competitive salary study for our Animal
Services classifications in 2017 to increase the
department’s recruitment and staff retention.
Distribute brochures and
employment opportunities
for outreach and
recruitment to minorities.
Recruitment The Animal Services Department (ASD) will
continue to collaborate with local community
based organizations and agencies on
employment recruitments. ASD has
continuously promoted employment
opportunities to these organizations.
Community Based Organizations:
Workforce Development Board: East
Bay Works
Opportunity Junction, Antioch CA
Contra Costa Community College
District
October 16, 2018 BOS Minutes 289
23
Register and post Animal
Services Department
vacancies online, to reach a
broad section of minorities
Electronic Animal Services has also expanded its
employment recruitment efforts through social
media:
Facebook
Twitter
Register and post vacancies on large job
recruitment websites through the Contra Costa
Human Resources Department:
Indeed
Moster.com
GlassDoor
Contact: Arturo Castillo. Administrative Services Officer
arturo.castillo@asd.cccounty.us
October 16, 2018 BOS Minutes 290
24
ASSESSOR
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the
Assessor increased its workforce representation in four areas. Improvements were made to the
Officials and Administrators (Females and Whites), Professionals (Females), Technical (Males, Blacks
and Asians) and Administrative Support (Females and Whites) occupational categories. The job
categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training or through work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post-secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 29% 25%
Professionals 5% -
Technicians 14% 8% 15%
Administrative Support 2% 5%
October 16, 2018 BOS Minutes 291
25
ASSESSOR
2017 OUTREACH AND RECRUITMENT DATA
100 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce12
Male
(%)
Female
(%)
Working-Age
Population
by Job
Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County Workforce 3 33 67 X
Underrepresentation X 25 X X
Professionals
Working-Age
Population
X 46 54 108,045
County Workforce 48 58 42 X
Underrepresentation X X 12 X
Technicians
Working-Age
Population
X 51 49 13,265
County Workforce 6 50 50 X
Underrepresentation X 1 X X
Administrative Support
Working-Age
Population
X 38 62 141,985
County Workforce 43 9 91 X
Underrepresentation X 29 X X
12 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 292
26
ASSESSOR
2017 OUTREACH AND RECRUITMENT DATA
100 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and
Ethnicity13
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
2 or
More
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce
Administrators
100 0 0 0 0 0 0
Underrepresentati
on
X 7 10 14 1 0 2
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 65 2 4 8 0 2 19
Underrepresentati
on
X 5 5 13 0 X X
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 50 17 0 33 0 0 0
Underrepresentati
on
1 X 10 X 0 1 2
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce
Support
60 14 12 9 0 0 5
Underrepresentati
on
X X 7 6 1 0 X
13 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 293
27
ASSESSOR
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31, 2017,
the Office of the Assessor’s workforce statistical data indicate the following:
Males are underrepresented in Official and Administrator and Administrative
Support positions;
Females are underrepresented in Professional positions;
Black, Hispanic, and Asians are underrepresented in Official and Administrator
positions;
Asians are underrepresented in Professional positions; and
Hispanics are underrepresented in Technician positions.
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting specific outreach and recruitment efforts to Community Based Organizations,
Professional Groups and online recruitment sites who serve the populations listed above.
Message: The Office of the Assessor will conduct strategic outreach efforts to community/faith
based organizations, professional groups and online websites that serve those
populations where we have underrepresentation. We will electronically send these
organizations all open vacancies within the department during the fiscal year. This
proactive measure will help to create a more diverse applicant pool of qualified candidates
to apply for departmental vacancies.
Tools: Community based organizations to reach out to men a nd women
Local colleges and universities
Distribute to various applicable professional groups
Post job vacancies on websites and job centers
October 16, 2018 BOS Minutes 294
28
Message Distribution
STRATEGY
ELEMENT
TASKS
Partner with community
based organizations to
reach out to males and
females to apply for
Technical and Administrative
Support positions within our
workforce
Personal Contact Connect with:
Men and Women of
Purpose
Shelter, Inc.
East Bay Goodwill
Register to join the online
community
Electronic Publication Register with websites such
as womenforhire.com
www.wib-i-com and
careerwomen.com to reach
women who are interested in
Professional positions.
Utilize online networks to
reach the Hispanic, Asian,
and Black communities
Electronic Publication Post job vacancies on the
Professional Diversity
Network
Coordinate with Hispanic,
Asian, and Black
organizations to reach those
interested in Officials and
Administration, Professional,
and Technician positions at
the Assessor’s Office
Personal Contact Connect with:
Hispanic Chamber of
Commerce
Lao Family Community
Development
East County NAACP
Connect with California
Community Colleges and
Adult Schools
Personal Contact Reach out to local colleges
(such as DVC, Los
Medanos, Cal State East
Bay, and Contra Costa
College, Contra Costa Adult
Education) to post job
vacancies
Work with subject matter
experts to connect with
professional groups in order
to reach individuals
interested in Official and
Administrator, Technician,
and Professional positions
Electronic Publication Distribute announcements to
applicable professional
groups (such as California
State Association of
Counties and California
Assessors’ Association)
Utilize community job
centers and resources
Publication/Print Post job openings at
Workforce Development
Board East Bay Works One-
Stop Career Center
locations.
Contact: Danielle Gomez – Administrative Analyst
danielle.gomez@assr.cccounty.us
October 16, 2018 BOS Minutes 295
29
AUDITOR-CONTROLLER
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Auditor-
Controller increased its workforce representation in two areas. Improvements were made to the
Professional (Males, Whites and Hispanics) and the Administrative Support (Females, Blacks and
Hispanics) occupational category. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and a ttorneys.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
14 As of December 31, 2015, the Professional’s classification contained twenty-six employees. There were no Hispanic employees in this classification. As of December 31,
2017, the Professional’s classification contained twenty-seven employees in which two identified as Hispanic.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators
Professionals 6% 2% 7%14
Administrative Support 6% 7% 16%
October 16, 2018 BOS Minutes 296
30
AUDITOR – CONTROLLER
2017 OUTREACH AND RECRUITMENT DATA
52 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce15
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
Officials and
Administrators
2 50 50 X
Underrepresentation X 8 X X
Professionals
Working-Age
Population
X 46 54 108,045
Professionals 27 37 63 X
Underrepresentation X 9 X X
Administrative Support
Working-Age
Population
X 38 62 141,985
Administrative Support 23 4 96 X
Underrepresentation X 34 X X
15 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 297
31
AUDITOR-CONTROLLER
2017 OUTREACH AND RECRUITMENT DATA
52 EMPLOYEES
RACE AND ETHNICITY
Demographics by Race
and Ethnicity16
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian
Alaska
Native
(%)
Two or
More Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 0 0 50 0 0 0 50
Underrepresentation 66 7 X 14 1 0 X
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 33 7 7 33 4 0 15
Underrepresentation 27 0 2 X X 0 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 48 17 22 4
0 0 9
Underrepresentation 5 X X 11 1 0 X
16 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Lat ino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 298
32
AUDITOR-CONTROLLER
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce, which is reflective of the communities that we serve. As of December 3 1,
2017, the Office of the Auditor-Controller workforce statistical data indicates the following:
Males are underrepresented in Professional positions by 9% and Administrative
Support positions by 34%.
Whites are underrepresented in Officials & Administrator positions by 66% and in
Professional positions by 27%.
Blacks are underrepresented in Officials & Administrator positions by 7%.
Asians are underrepresented in Officials & Administrator positions by 14% and in
Administrative Support positions by 11%.
Objective: Increase the applicant flow of underrepresented groups within our Office by encouraging
them to apply for vacant positions. Create diversified applicant pools to fill vacancies with
the Office through increased outreach.
Message: The Office of the Auditor-Controller will continue to work with the Human Resources
Department to strengthen its outreach efforts. The Auditor-Controller’s Office is
committed to conducting strategic and targeted outreach to meet both the county and
department outreach goals, as determined by the Office of Equal Employment
Opportunity. The Office will continue to conduct strategic outreach efforts to community
based organizations, professional groups, and online websites that serve those
populations where we have underrepresentation.
Tools: Community Organizations such as the Chamber of Commerce
Professional websites such as the California Auditor -Controller’s State Association,
California State Association of Counties (CSAC).
Recruiting websites such as Ziprecruiter, Monster, and Indeed.
Local junior colleges and universities.
October 16, 2018 BOS Minutes 299
33
Message Distribution
STRATEGY
ELEMENT
TASKS
Partner with professional
organizations to reach out to
the underrepresented groups
of the office and apply for
Professional and
Administrative Support
positions within the Office. Personal Contact
Create professional
relationships and partner
with local colleges such as
DVC, Los Medanos, Cal
State East Bay, and local
high schools
Attend job and career fairs
geared towards helping the
underrepresented groups of
the office find employment
both in Professional and
Administrative Support
positions. Personal Contact
Work with Human Resources
to attend at least 2 job and
career fairs during the fiscal
year
Partner with community
based organizations who the
underrepresented groups of
the office and who are
interested in working in
Administrative Support
positions. Personal Contact
Partner with the Office of
EEO to reach our specific
audience
Post job notices to the State
Association of County
Auditor’s website
Publication/Print
Media/Electronic
When notified of job
announcements post to
website
Post job notices to the
California State Association
of Counties (CSAC) website
Publication/Print
Media/Electronic
When notified of job
announcements post to
website
Email job vacancies to local
colleges and universities and
to career counselors within
the local college and
university system
Publication/Print
Media/Electronic
When notified of job
announcements email
Implement an Internship
Program Personal Contract
Develop an internship
program to attract college
students interested in a
career in public
accounting/auditing
Contact: Bob Campbell. Auditor-Controller Contra Costa County
Bob.Campbell@ac.cccounty.us
October 16, 2018 BOS Minutes 300
34
CHILD SUPPORT SERVICES
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that Child
Support Servces increased its workforce representation in three areas. Improvements were made to
the Professional (Males), Technical (Males, Blacks and Hispanics) and Administrative Support (Males,
Whites and Hispanics) occupational categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations, which require a combination of basic scientific or technical knowledge
and manual skill, which can be obtained through specialized post-secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators
Professionals 6%
Technicians 52% 1% 5%
Administrative Support 1% 3% 9%
October 16, 2018 BOS Minutes 301
35
CHILD SUPPORT SERVICES
2017 OUTREACH AND RECRUITMENT DATA
126 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce17
Total
County
Workforce
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X X 58 42 82,930
County Workforce 3 X 0 100 X
Underrepresentation X X 58 X X
Professionals
Working-Age
Population
X X 46 54 108,045
County Workforce 20 X 25 75 X
Underrepresentation X X 21 X X
Technicians
Working-Age
Population
X X 51 49 13,265
County Workforce 4 X 75 25 X
Underrepresentation X X X 24 X
Administrative Support
Working-Age
Population
X X 38 62 141,985
County Workforce 99 X 19 81 X
Underrepresentation X X 19 X X
17 The total number of people who had worked for the County at least one day during the 2017 c alendar year.
October 16, 2018 BOS Minutes 302
36
CHILD SUPPORT SERVICES
2017 OUTREACH AND RECRUITMENT DATA
126 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity18
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
2 or more
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 67 0 0 0 0 0 33
Underrepresentation X 7 10 14 1 0 X
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 85 5 5 5 0 0 0
Underrepresentation X 2 4 16 0 0 2
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 25 25 25 0 0 0 25
Underrepresentation 26 X X 27 0 1 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 47 17 21 8 0 0 6
Underrepresentation 6 X X 7 1 0 X
18 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino ," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 303
37
CHILD SUPPORT SERVICES
OUTREACH AND RECRUITMENT PLAN
FY 2018- FY 2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31,
2017, the Department of Child Support Services is under represented in males for each
job category except the Technicians. There is under representation in females in the
Technicians job category. There is under representation in the Asian population in the
Officials and Administrators, Professional, and Technician job categories. There is
underrepresentation of the Hispanic and Black population in the Officials and
Administrators job category. Additionally, there is under representation in the White
population in the Technicians job category.
Objective: Increase the visibility of males within the workforce. Increase the visibility of females in
the Technician workforce. Target Asian, Black, Hispanic, and White populations in an
attempt to mitigate current trends of under representation. The Department will work to
more broadly market and promote job vacancies.
Message: The Department will utilize social media and online resources to reach a broad
candidate pool. The Department will make efforts to develop relationships and conduct
targeted outreach efforts with local Asian and Hispanic based organizations.
Outreach
Tools:
YOU TUBE Video
Social Media
Community Outreach
Message Distribution
Strategy Element Tasks
Use employee testimonial
video and post to the
Department’s webpage
Electronic Media Link the YOU TUBE video of
incumbent employees in the
underrepresented groups, explaining
the duties of the open positions to the
County HR webpage job posting to
the Department’s webpage.
Utilize social media to
expand exposure of open
job opportunities
Electronic Media Post link to open job opportunities on
the Department’s Facebook page.
October 16, 2018 BOS Minutes 304
38
Continually monitor to address
potential candidate feedback
Conduct outreach to local
community groups,
targeting groups specific
Asian, Hispanic and
African-American
populations.
Electronic Media Build community partnerships and
provide electronic job postings for
distribution during open recruitment
periods. Will target Shelter, Inc and
local Salvation Army chapter for male
and African-American outreach,
Asian Business League of San
Francisco for Asian outreach,
Monument Impact for Hispanic
outreach.
Contact: Sarah Bunnell, Administrative Services Officer at 925-313-4433
October 16, 2018 BOS Minutes 305
39
CLERK-RECORDER-ELECTIONS
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Clerk-
Recorder-Elections increased its workforce representation in four areas. Improvements were made to
the Officials and Administrators (Males and Whites) Professional (Females, Whites, and Hispanics),
Technical (Males and Whites) and Administrative Support (Males and Hispanics) occupational
categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations, which require a combination of basic scientific or technical knowledge
and manual skill, which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 25% 25%
Professionals 50% 50% 17%
Technicians 5% 15%
Administrative Support 7% 7%
October 16, 2018 BOS Minutes 306
40
CLERK- RECORDER- ELECTIONS
2017 OUTREACH AND RECRUITMENT DATA
73 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce19
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County
Workforce
2 50 50 X
Underrepresent
ation
X 8 X X
Professionals
Working-Age
Population
X 46 54 108,045
County
Workforce
6 17 83 X
Underrepresent
ation
X 29 X X
Technicians
Working-Age
Population
X 51 49 13,265
County
Workforce
5 80 20
Underrepresent
ation
X X 29 X
Administrative Support
Working-Age
Population
X 38 62 141,985
County
Workforce
Support
60 32 68 X
Underrepresent
ation
X 6 X X
19 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 307
41
CLERK RECORDER–ELECTIONS
2017 OUTREACH AND RECRUITMENT DATA
73 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity20
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/Alask
a Native
(%)
2 or more
Races
(%)
Officials and Administrators
Working-Age
Population 66 7 10 14 1 0 2
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 7 10 14 1 0 2
Professionals
Working-Age
Population 60 7 9 21 0 0 2
County Workforce 83 0 17 0 0 0 0
Underrepresentation X 7 X 21 0 0 2
Technicians
Working-Age
Population 51 7 10 27 0 1 2
County Workforce 40 0 20 20 0 0 20
Underrepresentation 11 7 X 7 0 1 X
Administrative Support
Working-Age
Population 53 10 19 15 1 0 2
County Workforce 45 10 32 8 0 3 2
Underrepresentation 8 0 X 7 1 X 0
20 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hisp anic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 308
42
CLERK-RECORDER-ELECTIONS
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Clerk-Recorder-Elections Department remains committed to maintaining a diverse
and inclusive workforce reflective of the communities we serve. As of December 31,
2017, the County’s workforce statistical data indicate the following for the Clerk-Recorder-
Elections Department:
Males are underrepresented in Professionals positions;
Females are underrepresented in Technical positions;
Whites are underrepresented in Technical positions;
Blacks are underrepresented in Officials and Adm inistrators, Professionals, and
Technical positions;
Hispanics are underrepresented in Officials and Administrators positions;
Asians are underrepresented in Officials and Administrators and Professionals
positions.
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting specific outreach and recruitment efforts to Community/Faith Based
Organizations, professional groups, and online recruitment sites who serve the
populations listed above.
Message: On behalf of the Clerk-Recorder-Elections Department, the Human Resources unit will
conduct strategic outreach efforts to community/faith based organizations, professional
groups, and online websites that serve those populations where we have
underrepresentation. These organizations will be provided information about open
vacancies within the department. This proactive measure will help to create a more
diverse applicant pool of qualified candidates to apply for departmental vacancies.
Tools: Community/faith based organizations
Local job fairs and career days
Local colleges and universities
Websites geared towards helping men and women find employment.
Create and distribute informational brochures
October 16, 2018 BOS Minutes 309
43
Message Distribution
STRATEGY
ELEMENT
TASKS
Partner with professional
organizations to reach out to
males and females to apply
for Officials and
Administrators, Professional,
Technical, and Admin.
Support positions within our
workforce
Personal Contact Create professional
relationships and partner
with local colleges such as
DVC, Los Medanos, and Cal
State East Bay
Attend job and career fairs
geared towards helping
males and females find
employment
Personal Contact Attend job and career fairs
during the fiscal year; focus
on distributing information
about the department’s
vacancies.
Partner with community
based organizations who
serve males who are
interested in working in the
Technical and Administrative
Support fields and females
interested in Technical
positions
Personal Contact Partner with the Salvation
Army, Men and Women of
Purpose and Community
Churches to reach our
specific audiences
Research employment
websites and register to join
the online community
Internet/Computer Register with websites such
as womenforhire.com and
careerwomen.com to reach
women
Contact: Debi Cooper, Deputy County Clerk-Recorder
925-335-7899
October 16, 2018 BOS Minutes 310
44
CONSERVATION AND DEVELOPMENT
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2 015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that
Conservation and Development increased its workforce representation in five areas. Improvements
were made to the Officials and Administrators (Females, Blacks and Asians), Professionals (Females,
and Whites), Technical (Males, Whites, Hispanics, and Asians), Administrative Support (Females,
Blacks, Hispanics and Asians), and Service Maintenance (Hispanics) occupational categories. The job
categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized con sultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, whi ch
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations, which require a combination of basic scientific or technical knowledge
and manual skill, which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public such as maintenance workers
and custodians.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 20% 12% 5%
Professionals 5% 4% 7%
Technicians 11% 5% 5% 3%
Administrative Support 2% 6% 10% 12%
Service Maintenance 20%
October 16, 2018 BOS Minutes 311
45
CONSERVATION & DEVELOPMENT
2017 OUTREACH AND RECRUITMENT DATA
139 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce21
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County Workforce 8 38 62 X
Underrepresentation X 20 X X
Professionals
Working-Age
Population
X 46 54 108,045
County Workforce 56 59 41 X
Underrepresentation X X 13 X
Technicians
Working-Age
Population
X 51 49 13,265
County Workforce 44 70 30 X
Underrepresentation X X 19 X
Administrative Support
Working-Age
Population
X 38 62 141,985
County Workforce 26 15 85 X
Underrepresentation X 23 X X
Service Maintenance
Working-Age
Population
X 58 42 122730
County Workforce 5 100 0 X
Underrepresentation X X 42 X
21 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 312
46
CONSERVATION & DEVELOPMENT
2017 OUTREACH AND RECRUITMENT DATA
139 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race
and Ethnicity22
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or
More
Races
(%)
Officials and Administrators
Working-Age
Population 66 7 10 14 1 0 2
County Workforce 75 12 0 13 0 0 0
Underrepresentation X X 10 1 1 0 2
Professionals
Working-Age
Population 60 7 9 21 0 0 2
County Workforce 46 11 13 18 0 0 12
Underrepresentation 14 X X 3 0 0 X
Technicians
Working-Age
Population 51 7 10 27 0 1 2
County Workforce 66 5 20 5 2 0 2
Underrepresentation X 2 X 22 X 1 0
Administrative Support
Working-Age
Population 53 10 19 15 1 0 2
County Workforce 50 12 27 12 0 0 0
Underrepresentation 3 X X 3 1 0 2
Service Maintenance
Working-Age
Population 33 10 42 12 0 0 1
County Workforce 40 20 40 0 0 0 0
Underrepresentation X X 2 12 0 0 1
22 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 313
47
CONSERVATION AND DEVELOPMENT
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors and the Department of Conservation and Development (DCD)
remain committed to maintain a diverse and inclusive workforce which is reflective of the
communities that we serve. As of December 31, 2017, the County’s workforce statistical
data indicate the following with respect to DCD:
Males are underrepresented in Official and Administrator and Administrative
Support positions.
Females are underrepresented in Professional, Technician and Service
Maintenance positions.
Hispanics are underrepresented in Official and Administrator positions.
Whites are underrepresented in Professional positions.
Asians are underrepresented in Technician and Service Maintenance positions.
Objective: Increase the applicant flow of underrep resented groups within our workforce by
conducting specific outreach and recruitment efforts to Community/Faith Based
Organizations, Educational Institutions, Professional Groups and online recruitment sites
who serve the populations listed above.
Message: DCD will conduct strategic outreach efforts to community/faith based organizations,
professional groups and online websites that serve those populations where we have
underrepresentation. We will electronically send these organizations all open vacancie s
within the department during the fiscal year. This proactive measure will help to create a
more diverse applicant pool of qualified candidates to apply for departmental vacancies.
Tools: Community/ faith based organizations
Local job fairs and career days
Local colleges and universities
Websites geared towards helping women find employment in professional, technician and
service maintenance positions
Websites geared towards helping men find employment in administrative support
positions
October 16, 2018 BOS Minutes 314
48
Websites geared towards helping Hispanics find employment in Official and Administrator
positions
Websites geared towards helping Asians find employment in Technical and Service
Maintenance positions
Websites geared toward hiring existing Contra Costa County residents in order to improve
representation in all underrepresented groups, including whites in Professional positions.
Message Distribution
STRATEGY
ELEMENT
TASKS
Partner with professional
organizations to seek
Hispanic, Asian, and Native
Hawaiian/Pacific Islander,
female and male applicants
for the positions where these
groups are
underrepresented.
Personal Contact Create professional
relationships and partner
with local colleges such as
DVC, Los Medanos, Contra
Costa College, Cal State
East Bay and UC Berkeley.
Attend job and career fairs
geared towards helping
underrepresented classes
find employment.
Personal Contact Attend job and career fairs
during the fiscal year. DCD
will focus on recruiting
Whites, Hispanics, Asians,
Native Hawaiian/Pacific
Islanders, males and
females to distribute
information about the
department’s vacancies.
Partner with community
based organizations who
serve males who are
interested in working in the
Administrative Support fields
Personal Contact Partner with the Salvation
Army, Rubicon, and other
community based
organizations to reach our
specific audience
Request the assistance of
current employees to let
others know about the
department’s vacancies.
Personal Contact Provide word-of-mouth job
vacancy advertising among
their families, organizations
or church
Identify leading Hispanic
organizations in the specific
trades that DCD needs as
well as community based
organizations in Contra
Costa County and post job
Personal Contact DCD will work specifically
with Society of Hispanic
Professional Engineers,
Region 1 California Chapter,
and Labor Council for Latin
American Advancement
October 16, 2018 BOS Minutes 315
49
announcements onto their
website or offices
(www.lclaa.org), San
Francisco and Alameda
Chapters.
Post job vacancy
announcements in
newspapers and publications
targeting underrepresented
populations, as budget will
allow.
Internet/Computer Examples include El
Observador, a Spanish
language newspaper based
in San Jose and circulated in
the Bay Area, Monument
Impact and Hispanic
Chamber of Commerce of
Contra Costa.
Research employment
websites and register to join
the online community.
Internet/Computer Register with websites such
as womenforhire.com;
careerwomen.com; National
Association for Asian
American Professionals
(Career Center web page);
and the
National Society for Hispanic
Professionals to reach
underrepresented groups.
Contact: Kelli Zenn, Land Information Business Operations Manager
Kelli.Zenn@dcd.cccounty.us
October 16, 2018 BOS Minutes 316
50
COUNTY ADMINISTRATOR
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the County
Administrator increased its workforce representation in four areas. Improvements were made to the
Officials and Administrators (Males, Whites and Blacks) Professionals (Males, Blacks and Hispanics),
Technicians (Males, Blacks and Hispanics), and Administrative Support (Males) occupational
categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations, which require a combination of basic scientific or technical knowledge
and manual skill, which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Skilled Crafts: Occupations in which workers perform jobs which require special manual skill and
a thorough and comprehensive knowledge of the processes involved such as electricians and tree
trimmers.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 5% 8% 7%
Professionals 22% 4% 2%
Technicians 9% 1% 10%
Administrative Support 3%
Skilled Craft
October 16, 2018 BOS Minutes 317
51
COUNTY ADMINISTRATOR
2017 OUTREACH AND RECRUITMENT DATA
129 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce23
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County Workforce 17 47 53 X
Underrepresentation X 11 X X
Professionals
Working-Age
Population
X 46 54 108,045
County Workforce 54 41 59 X
Underrepresentation X 5 X X
Technicians
Working-Age
Population
X 51 49 13,265
County Workforce 30 80 20 X
Underrepresentation X X 29 X
Administrative Support
Working-Age
Population
X 38 62 141,985
County Workforce 27 7 93 X
Underrepresentation X 31 X X
Skilled Craft
Working-Age
Population
X 95 5 41,025
County Workforce 1 100 0 X
Underrepresentation X X 5 X
23 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 318
52
COUNTY ADMINISTRATOR
2017 OUTREACH AND RECRUITMENT DATA
129 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race
and Ethnicity24
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian
Alaska
Native
(%)
Two or
More
Races
(%)
Officials and Administrators
Working-Age
Population 66 7 10 14 1 0 2
County Workforce 71 18 12 0 0 0 0
Underrepresentation X X X 14 1 0 2
Professionals
Working-Age
Population 60 7 9 21 0 0 2
County Workforce 52 11 13 13 0 0 11
Underrepresentation 8 X X 8 0 0 X
Technicians
Working-Age
Population 51 7 10 27 0 1 2
County Workforce 17 20 20 23 0 0 20
Underrepresentation 34 X X 4 0 1 X
Administrative Support
Working-Age
Population 53 10 19 15 1 0 2
County Workforce 63 11 4 11 0 0 11
Underrepresentation X X 15 4 1 0 X
Skilled Craft
Working-Age
Population 49 6 35 7 1 0 1
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 6 35 7 1 0 1
24 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 319
53
COUNTY ADMINISTRATOR
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors and the County Administrator’s Office (CAO) remain committed
to maintaining a diverse and inclusive workforce that is reflective of the communities that
we serve. As of December 31, 2017, the County’s workforce statistical data indicate the
following:
Males are underrepresented in Officials/Administrators and Administrative Support
positions.
Females are underrepresented in Technical and Skilled Craft positions.
Whites are underrepresented in Technical positions.
Blacks are underrepresented in Skilled Craft positions.
Hispanics are underrepresented in Administrative Support and Skilled Craft
positions.
Asians are underrepresented in Officials/Administrators and Skilled Craft
positions.
This workforce underrepresentation data includes data for the following departments
within the County Administrator’s agency: Clerk of the Board; CCTV; Department of
Information Technology, including the Telecommunications division; Law a nd Justice
Systems; Risk Management, and the Administrative Office of the County Administrator,
including the Labor Relations unit.
Objective: Increase the applicant flow of males, females, Whites, Blacks, Hispanics and Asians who
meet the minimum qualifications by encouraging them to apply for the vacant positions
within the various departments of the CAO.
Message: In partnership with the Human Resources Department, the CAO will continue to conduct
strategic and targeted outreach efforts to organizations and online websites that serve
diverse populations. We will continue to electronically send these organizations all open
vacancies within the department and continue national outreach efforts as appropriate.
These proactive measures have supported our hiring efforts in the administrative office.
Recently selected candidates for the Administrative Office and other departments identify
with one of the underrepresented data categories, which may support a more balanced
October 16, 2018 BOS Minutes 320
54
representation. Therefore, we expect next year’s data to demonstrate improvement in
our underrepresentation data.
The 2017-18 Outreach and Recruitment Plan contained strategies to improve
representation in the various categories and our recruitment efforts have rendered
success with a 4% reduction in the underrepresentation of males and a more balanced
representation of those who identify as Hispanic.
Tools: Websites geared towards helping men and those of White and Asian race/ethnicity find
employment
Conduct nationwide outreach, as appropriate
Partner with the Human Resources Department
Message Distribution
STRATEGY
ELEMENT
TASKS
Conduct outreach with
community based
organizations to seek
potential male, White, Black,
Asian and Hispanic
candidates.
Personal/Computer Contact Reach out to community
based organizations that
serve diverse
populations, including
males, White, Blacks,
Asians and Hispanic
populations, such as the
YMCA, Asian Business
League of San Francisco,
Men and Women of
Purpose, and Lao Family
Community
Development.
Post job announcements
with these partner
agencies when positions
are being recruited.
Conduct nationwide
outreach, as appropriate
Contractor/Internet/Computer
Utilize a contractor that
can facilitate nationwide
recruitment efforts to
potential male, female
and White and Hispanic
candidates, as well as,
support the department’s
selection efforts. The
County has previously
received these types of
services from Teri Black
and Company, Bob
Murray & Associates, and
Alliance, and would likely
October 16, 2018 BOS Minutes 321
55
utilize such services as
needed to broaden
outreach efforts.
Partner with Human
Resources Department to
post job vacancies on
websites and publications of
Alumni Associations geared
towards helping males,
White and Hispanic
populations find
employment.
Personal/Computer Contact
Inform the Human
Resources Department of
our recruiting strategies
and request their support
to heavily recruit with
Alumni Associations to
support our efforts to
recruit male, female,
White, and Hispanic
populations.
Expand outreach to
associations and
professional organizations
that serve males, Asian and
White populations.
Internet/Computer/Personal
Contact
Work closely with Human
Resources and staff to
identify professional
organizations, inclusive of
diverse populations, to
send job announcements
to, such as, National
Coalition for Men and the
National Association of
Asian American
Professionals.
Contact: Laura Strobel, Senior Deputy County Administrator
Laura.strobel@cao.cccounty.us
October 16, 2018 BOS Minutes 322
56
COUNTY COUNSEL
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the County
Counsel increased its workforce representation in three areas. Improve ments were made to the
Officials and Administrators (Males and Whites) Professionals (Males), and Administrative Supports
(Females and Hispanics) occupational categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical k nowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 24% 3%
Professionals 1%
Administrative Support 1% 5%
October 16, 2018 BOS Minutes 323
57
COUNTY COUNSEL
2017 OUTREACH AND RECRUITMENT DATA
50 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce25
Male
(%)
Female
(%)
Working-
Age
Population
by Job
Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 7 57 43 X
Underrepresentation X 1 X X
Professionals
Working-Age Population X 46 54 108,045
County Workforce 27 33 67 X
Underrepresentation X 13 X X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 16 31 69 X
Underrepresentation X 7 X X
25 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 324
58
COUNTY COUNSEL
2017 OUTREACH AND RECRUITMENT DATA
50 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race
and Ethnicity26
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian /
Alaska
Native
(%)
Two or
More
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 86 14 0 0 0 0 0
Underrepresentation X X 10 14 1 0 2
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 67 11 0 4 0 0 19
Underrepresentation X X 9 17 0 0 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 50 25 13 6 0 0 6
Underrepresentation 3 X 6 9 1 0 X
26 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "S panish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 325
59
COUNTY COUNSEL
OUTREACH AND RECRUITMENT PLAN
FY 2018- FY2019
Issue: The County Counsel’s office remains diligent in its outreach efforts for attorney and non -
clerical recruitments. The Equal Employment Opportunity data chart for the Office of the
County Counsel indicated under-representation in the following categories:
Hispanics and Asians are under-represented in the Officials and Administrators
positions:
Hispanics and Asians are under-represented in the Professionals positions and;
Men are under-represented in the Professional positions
For the purpose of this plan, this office addresses the attorney and non -clerical
recruitments. Clerical outreach and recruitments are countywide and are not conducted
by this office.
Objective: The department will continue to enhance partnerships with legal associations, law school
career centers, and like agencies to keep them apprised of job vacancies within our office.
Message: The Office of the County Counsel will continue to conduct focused outreach efforts to
under-represented groups in order to create a diverse and qualified applicant pool of
candidates from which we fill the vacant positions. We continue to send over 70
organizations all open recruitments within the department during the examination period.
These measures will help to create a more diverse applicant pool of qualified candidates
that apply for departmental vacancies.
Tools: Enhance the communication methods of job vacancies with our under -represented
groups expanding the postings of job vacancies via the internet with online job boards,
Public Services Employment services, mailings and coordination with the EEO’s staff
through community based organizations, local job fairs, and law school career centers.
Message Distribution
STRATEGY
ELEMENT
TASKS
Announce job vacancies via
mailings, email and internal
office postings
Electronic/Print Media Mail or email announcement
to the targeted under-
represented group’s law
October 16, 2018 BOS Minutes 326
60
school career centers and
Legal Assistant programs
Utilize County Counsel’s
brochure to explain the
Office’s outreach and
recruitment missions and
goals
Publication
Print Media
Mail brochures to the
targeted under-represented
group’s recruitment centers
Research additional
employment websites and
register to post open job
vacancies with the online
community
Internet Register and post job
vacancies on various
websites such as
Government Jobs
Announce vacancies via links
on County Counsel webpage
that will provide notices about
current announcements and
instructions for future
notifications of job related
alerts
Website Maintain the “Job
Description” and “FAQ” links
on the County Counsel
website with current
information
Link the Equal Employment
Opportunity homepage to the
County Counsel’s homepage
Internet Increase the County
Counsel’s exposure to the
community to promote the
goals of diversity, inclusion
and equality in the workplace
Coordinate distribution of
County Counsel brochure via
job recruitment
announcements with EEO’s
staff during their participation
in job fairs
Personal Contact Partner with organizations
who serve the under-
represented populations
Contact: Wanda R. McAdoo, Administrative Services Officer
wanda.mcadoo@cc.cccounty.us
October 16, 2018 BOS Minutes 327
61
DISTRICT ATTORNEY
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the District
Attorney increased its workforce representation in four areas. Improvements were made to the Officials
and Administrators (Females), Professionals (Males, Blacks and Hispanics), Technical (Females and
Whites) and Administrative Support (Females and Hispanics) occupational categories. The job
categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations, which require a combination of basic scientific or technical knowledge
and manual skill, which can be obtained through specialized post-secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
27 As of December 31, 2015, the Technicians classification contained seventeen employees. There were no female employees in this classification. As of December 31,
2017, the Technicians classification contained twenty-eight employees in which two identified as female.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 14%
Professionals 3% 2% 3%
Technicians 7%27 29%
Administrative Support 8% 15%
October 16, 2018 BOS Minutes 328
62
DISTRICT ATTORNEY
2017 OUTREACH AND RECRUITMENT DATA
218 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce28
Male
(%)
Female
(%)
Working-Age
Population
by Job
Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County Workforce 10 50 50 X
Underrepresentation X 8 X X
Professionals
Working-Age
Population
X 46 54 108,045
County Workforce 108 56 44 X
Underrepresentation X X 10 X
Technicians
Working-Age
Population
X 51 49 13,265
County Workforce 28 93 7 X
Underrepresentation X X 42 X
Administrative Support
Working-Age
Population
X 38 62 141,985
County Workforce 72 14 86 X
Underrepresentation X 24 X X
28 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 329
63
DISTRICT ATTORNEY
2017 OUTREACH AND RECRUITMENT DATA
218 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity29
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
2 or more
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 7 10 14 1 0 2
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 71 6 6 6 0 1 8
Underrepresentation X 1 3 15 0 X X
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 64 7 18 0 4 0 7
Underrepresentation X 0 X 27 X 1 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 43 15 31 6 3 0 3
Underrepresentation 10 X X 9 X 0 X
29 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People wh o do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 330
64
DISTRICT ATTORNEY
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31,
2017, the District Attorney’s (DA) workforce statistical data indicates the following:
• Females are underrepresented in Professional and Technician
positions;
• Males are underrepresented in Administrative Support positions;
• Blacks are underrepresented in Official and Administrator positions;
• Hispanics are underrepresented in Official and Administrator
positions;
• Asians are underrepresented in Official and Administrator positions;
Professional and Technician positions;
• Whites are underrepresented in Administrative Support positions.
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting outreach and recruitment efforts with many and varied groups and
organizations who serve these groups.
Message: The DA will conduct strategic and targeted outreach efforts to community/faith
based organizations and online websites that serve females. We will
electronically send these organizations all open vacancies within the department
during the fiscal year. This proactive measure will help to create a more diverse
applicant pool of qualified candidates to apply for departmental vacancies.
Tools: Community/ faith based organizations Local
job fairs and career days
Local colleges and universities
Websites geared towards helping women find employment. Create and
distribute informational brochures
October 16, 2018 BOS Minutes 331
65
Message Distribution
STRATEGY
ELEMENT
TASKS
Participate in job fairs at
Law Schools around the
state.
Personal Contact Participate in reviewing
resumes, mock hiring
interviews in a program
titled Win That Job.
The recruitment committee
will actively seek out and
offer to participate/ interview
at job fairs sponsored by
organizations that
identify with diverse
populations.
Participation in mock
trial programs
Personal Contact Prosecutors volunteer to
participate in high school
mock trial programs in
underrepresented
communities to promote
interest in criminal
prosecution careers.
Outreach to diverse Law
School organizations
Personal Contact Speaking to law school
classes. Recruiting
committee will actively seek
opportunities to speak to law
school clubs and
organizations whose
members consist of
individuals from diverse
backgrounds to discuss a
career path. Examples of
groups the committee has
reached out to include:
• Armenian Law Student
Association
• Vietnamese
American Law
Society
• Pilipino American Law
Society
• La Raza Law Students
Association
• Korean American Law
October 16, 2018 BOS Minutes 332
66
Student Association
• Black Law
Students
Association
s
• Asian Pacific
American Law
Student
Association
Post job vacancies on
websites and in
publications geared
toward Hispanics,
Asians, females and
males.
Publication/Print
Media
Determine which
publications will assist us in
meeting out Hispanic
recruiting goals and express
our desire to hire individuals
from diverse backgrounds in
recruiting notices. We
have contacted SF La Raza
Lawyers,
East Bay La Raza Lawyers
Association, and La Raza
Lawyers of Santa Clara
County to ask them to
send out to their members'
job postings.
October 16, 2018 BOS Minutes 333
67
Pay law clerks
competitively in an effort
to attract individuals
from a variety of
socioeconomic
backgrounds.
Economic Increase compensation
for summer law clerks
from a fixed stipend of
$2000 to a competitive
hourly rate. We will
advertise this with all the
student associations on
school campuses
(including minority/criminal
school groups) as well as
minority bar
associations.
Outreach to Minority
Bar Associations
Personal Contact Notify Minority Bar
Associations of employment
opportunities; participate in
Panel Discussions on
Criminal Law issues. We will
outreach to the three local
bay area minority bar
associations that serve
Hispanic attorneys are: SF
La Raza Lawyers, East Bay
La Raza Lawyers
Association, and La Raza
Lawyers of Santa Clara
County. Then there is the
Minority Bar Coalition
(MBC) which is a coalition
of bar organizations that
are committed to serving all
attorneys from minority
groups. We also outreach
to the following:
• Asian Pacific Bar
Association -
Silicon Valley
• Asian American Bar
Association
• Charles Houston Bar
Association
• Bay Area Black
October 16, 2018 BOS Minutes 334
68
Prosecutors Association
• San Francisco La Raza
Lawyers
• Asian American
Prosecutors
Association
• Filipino Bar
Association of
Northern
California
• Black Women Lawyers
Association of Northern
California
• East Bay La
Raza Lawyers
Association
• Korean American Bar
Association of
Northern California
• La Raza Lawyers of
Santa Clara
County
• South Asian Bar
Association of Northern
California
• Vietnamese American Bar
Association of Northern
California
October 16, 2018 BOS Minutes 335
69
Outreach to Career
Development Office
(COO) at Law Schools
and other colleges and
organizations
Personal
Contact
Alumni from the Recruiting Team
reach out CDO's expressing our
interest in attracting a more
diverse applicant pool. La Raza
Law Students Association serves
Hispanic students. We will be
attempting to reach out to all
the La Raza organizations on
local school campuses.
Post job vacancies on
websites and
publications focused on
serving diverse
populations
Publication/Pr
int Media
Notify Opening Doors, International
Rescue Committee, Narika, RYSE
Youth Center, Family Justice
Centers (West and Central), Center
for the Pacific Asian Family,
Mujeres Unidas Y Activas, Korean
Family American Services, Asian
Pacific Islander Legal Outreach,
Asian Americans for
Community Involvement.
Post job vacancies on
websites and
publications focused
on women in law
enforcement.
Publication/Pr
int Media
Determine which organizations
might assist us in recruiting
sworn female law enforcement
personnel, and express the
Office's desire to increase the
number of female Senior
Inspectors.
Post job vacancies on
websites and publications
focused on law
enforcement
professionals with an
emphasis on bilingual
personnel.
Publication/Print
Media
Determine which organizations
might assist us in recruiting
sworn law enforcement
personnel, and express the
Office's desire to increase the
number of bilingual Senior
Inspectors.
Contact:
Phyllis Redmond, (925) 957-2259 predmond@contracostada.org
October 16, 2018 BOS Minutes 336
70
EMPLOYMENT AND HUMAN SERVICES
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that
Employment and Human Services increased its workforce representation in five areas. Improvements
were made to the Officials and Administrators (Females, Whites and Blacks), Professionals (Females,
Hispanics and Asians), Technical (Females, Whites and Asians), Administrative Support (Females,
Blacks and Hispanics) and Service Maintenance (Females, Hispanics and Asians) occupational
categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations, which require specialized and theoretical knowledge, which is
usually acquired through college training or through work experience and other training, which
provides comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations, which require a combination of basic scientific or technical knowledge
and manual skill, which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the public such as maintenance workers or
custodians.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 47% 15% 5%
Professionals 51% 2% 2%
Technicians 1% 10% 4%
Administrative Support 4% 1% 1%
Service Maintenance 54% 4% 15%
October 16, 2018 BOS Minutes 337
71
EMPLOYMENT AND HUMAN SERVICES
2017 OUTREACH AND RECRUITMENT DATA
1854 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce30
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 72 11 89 X
Underrepresentation X 47 X X
Professionals
Working-Age Population X 45 55 108,045
County Workforce 599 13 87 X
Underrepresentation X 32 X X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 31 58 42 X
Underrepresentation X X 7 X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 1139 13 87 X
Underrepresentation X 25 X X
Service Maintenance
Working-Age Population X 58 42 122,730
County Workforce 13 46 54 X
Underrepresentation X 12 X X
30 The total number of people who had worked for the County at least one day during the 2016 calendar year.
October 16, 2018 BOS Minutes 338
72
EMPLOYMENT AND HUMAN SERVICES
2017 OUTREACH AND RECRUITMENT DATA
1854 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and
Ethnicity31
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or
more
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 54 21 11 4 1 1 7
Underrepresentati
on
12 X X 10 0 X X
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 31 29 21 10 1 0 9
Underrepresentati
on
29 X X 11 X 0 X
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 42 23 6 10 3 0 16
Underrepresentati
on
9 X 4 17 X 1 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 30 26 30 7 1 0 6
Underrepresentati
on
23 X X 8 0 0 X
Service Maintenance
Working-Age
Population
33 10 42 12 0 0 1
County Workforce 0 31 54 15 0 0 0
Underrepresentati
on
33 X X X 0 0 1
31 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spani sh" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 339
73
EMPLOYMENT AND HUMAN SERVICES
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Employment and Human Resources Department (EHSD) remains committed to
maintain a diverse and inclusive workforce which is reflective of the communities that we
serve. As of December 31, 2017, the EHSD workforce statistical data indicate the
following:
Whites are underrepresented in Official and Administrator, Professional,
Technician, Administrative Support, and Service Maintenance positions
Asians are underrepresented in Official and Administrator, Professional and
Technician positions
Males are underrepresented in Official and Administrator, Professional,
Administrative Support, and Service Maintenance positions
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting specific outreach and recruitment efforts to Community/Faith Based
Organizations, Non-Profit Organizations, Professional Groups, Newspapers, Career
Fairs, Colleges and Universities, and online recruitment sites who serve the populations
listed above.
Message: EHSD will conduct strategic outreach efforts to community/faith based organizations,
professional groups and online websites that serve those populations where we have
underrepresentation. We will send these organizations all highly sought after and hard
to recruit positions within the department during the fiscal year. This proactive measure
will help to create a more diverse applicant pool of qualified candidates to apply for
departmental vacancies.
Tools: Community/ faith based organizations
Local career fairs
Local colleges and universities
Websites geared towards helping Whites and Asians find employment.
Create and distribute informational brochures
Create a “Grow Our Own” Program
October 16, 2018 BOS Minutes 340
74
Message Distribution
STRATEGY
ELEMENT
TASKS
Partner with
Community/Faith Based
Organizations
Personal Contact Create consistent ongoing
professional relationships
with parishioners.
Attend job and career fairs
geared towards helping
males find employment.
Personal Contact Attend at least 3 job and
career fairs during the fiscal
year. EHSD will focus on
recruiting Whites and Asians.
Partner with local colleges
and universities
Personal Contact Partner with Los Medanos
College, Diablo Valley
Community, Contra Costa
College, Diablo Valley
College, CAL State East
Bay, Holy Names and St.
Mary’s College.
Research employment
websites and register to join
the online community.
Internet/Computer Register with websites such
as www.linkedin.com
(targeting specific
categories), www.AAIP.org
(for Asian Americans/Pacific
Islanders in philanthropy
outreach),
www.CalJobs.ca.org and
www.swords-to-
plowshares.org to attract
White male veterans.
Advertising in specific
periodicals targeting Whites
and Asians.
Publications BBC News Asia
Contra Costa Times
East Bay Times
Create specific brochures for
hard to recruit positions.
Personal Social Workers
Information System Techs
Information System and
Program Analyst
Teachers
Create “Day in Life” vignettes
for hard to recruit positions.
Personal Social Workers
Information System
Technician
Information System and
Program Analyst
Teachers
October 16, 2018 BOS Minutes 341
75
Marketing Recruitment
Strategy
Personal Create a brand to market.
Create magnetic decals on
County vehicles advertising
Social Worker, Teachers,
and IT positions
Advertise current vacancies
in local movie theaters.
Contact: Debora Bouttѐ, Personnel Officer
dboutte@ehsd.cccounty.us
October 16, 2018 BOS Minutes 342
76
FIRE PROTECTION DISTRICT
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that Fire
increased its workforce representation in seven areas. Improvements were made to the Officials and
Administrators (Males and Blacks), Professional (Females and Hispanics), Technicians (Males and
Whites), Administrative Support (Males and Blacks), Service Maintenance (Blacks and Asians)
Protective Service Worker –Sworn (Males) and Protective Service Worker Non-Sworn (Males, Whites
and Hispanics) occupational categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training, work experience and other training which provides comparable
knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training such as laboratory analysts and civil engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the public such as maintenance workers or
custodians.
Protective Service Workers (Sworn): Occupations in which workers are entrusted with public
safety, security and protection from destructive forces.
Protective Service Workers (Non-Sworn): Occupations that perform technical and support work
in safety or law enforcement work, which does not require a sworn person. Examples include
community service officers and animal control officers.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 11% 6%
Professionals 4% 1%
Technicians 2% 12%
Administrative Support 17% 1%
Service Maintenance 8% 8%
Protective Service Worker
(Sworn) 1%
Protective Service Worker
(Non-Sworn) 59% 6% 23%
October 16, 2018 BOS Minutes 343
77
FIRE PROTECTION DISTRICT
2017 OUTREACH AND RECRUITMENT DATA
360 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce32
Male
(%)
Female
(%)
Working-
Age
Population
by Job
Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 11 73 27 X
Underrepresentation X X 15 X
Professionals
Working-Age Population X 46 54 108,045
County Workforce 102 93 7 X
Underrepresentation X X 47 X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 20 75 25 X
Underrepresentation X X 24 X
Protective Services (Sworn)
Working-Age Population X 82 18 9,480
County Workforce 143 95 5 X
Underrepresentation X X 13 X
Protective Services (Non-Sworn)
Working-Age Population X 54 46 810
County Workforce 26 92 8 X
Underrepresentation X X 38 X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 54 41 59 X
Underrepresentation X X 3 X
Skilled Craft Workers
Working-Age Population X 95 5 41025
County Workforce 1 100 0 X
Underrepresentation X X 5 X
Service Maintenance
Working-Age Population X 58 42 122,730
County Workforce 3 100 0 X
Underrepresentation X X 42 X
32 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 344
78
FIRE PROTECTION DISTRICT
2017 OUTREACH AND RECRUITMENT DATA
360 EMPLOYEES
RACE AND ETHNICITY
Demographics by Race
and Ethnicity33
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian Alaska
Native
(%)
Two or More
Races
(%)
Officials and Administrators
Working-Age Population 66 7 10 14 1 0 2
County Workforce 64 18 9 0 0 9 0
Underrepresentation 2 X 1 14 1 X 2
Professionals
Working-Age Population 60 7 9 21 0 0 2
County Workforce 68 11 14 3 1 2 2
Underrepresentation X X X 18 X X 0
Technicians
Working-Age Population 51 7 10 27 0 1 2
County Workforce 80 0 5 0 0 0 15
Underrepresentation X 7 5 27 0 1 X
Administrative Services
Working-Age Population 53 10 19 15 1 0 2
County Workforce 72 9 13 2 0 0 4
Underrepresentation X 1 6 13 1 0 X
Skilled Craft
Working-Age Population 49 6 35 7 1 0 1
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 6 35 7 1 0 1
Service Maintenance
Working-Age Population 33 10 42 12 0 0 1
County Workforce 33 33 0 33 0 0 0
Underrepresentation 0 X 42 X 0 0 1
Protective Services (Sworn)
Working-Age Population 53 15 15 10 3 0 3
County Workforce 69 4 12 4 1 2 8
Underrepresentation X 11 3 6 2 X X
Protective Services (Non-Sworn)
Working-Age Population 65 1 22 8 0 0 5
County Workforce 73 4 23 0 0 0 0
Underrepresentation X X X 8 0 0 5
33 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify wi th one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 345
79
FIRE PROTECTION DISTRICT
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Fire Protection District remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31, 2017,
the County’s workforce statistical data indicate the follo wing:
Females are underrepresented in Official and Administrator, Professional,
Technical, Protective Services (Sworn), Protective Services (Non -Sworn) and
Service Maintenance positions.
Hispanics are underrepresented in Skilled Craft and Service Maintena nce
positions.
Blacks are underrepresented in Technicians, Skilled Craft, and Protective Services
(Sworn) positions.
Asians are underrepresented in Officials and Administrators, Professionals,
Technicians, Administrative Services, Skilled Craft, and Protective Services (Non-
Sworn).
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting specific outreach and recruitment efforts to Community Based Organizations,
Professional Groups and online recruitment sites who serve the populations listed above.
Message: The Fire District will continue to conduct strategic outreach efforts to community based
organizations, professional groups and online websites that serve those populations
where we have underrepresentation. We will electronically send these organizations all
open vacancies within the District during the fiscal year. In addition, we will continue to
promote careers in the Fire Service by partnering with middle through high schools, and
community colleges with a diverse student population. These proactive measures will
help to create a more diverse applicant pool of qualified candidates to apply for District
vacancies.
Tools: In June 2016, the Fire Protection District formulated an “Outreach and Recruitment Team”
at the Fire Chief’s direction and with his direct participation on the committee. We began
working to increase the pool of eligible applications for positions in the District by (1)
targeting outreach to local middle and high schools, community colleges and universities
with our diversity goals in mind; (2) expanded internship opportunities by hiring Student
October 16, 2018 BOS Minutes 346
80
Interns who are currently enrolled in “Fire Science” certificate programs. The internship
opportunities are a useful tool to expand the applica nt pool for permanent positions when
they become available.
In 2017, the Districts’ Outreach and Recruitment efforts have been realized in hiring a
recruit class of 30 highly diverse candidates which include 6.67% Black, 16.67% Hispanic,
and 10% Female. We are committed to continuing and expanding our outreach efforts to
increase these numbers and reduce the percentage of underrepresentation.
Message Distribution
STRATEGY
ELEMENT
TASKS
Attend job and career fairs
geared towards helping our
underrepresented find
employment.
Personal Contact Attend at least 5 job and
career fairs during the fiscal
year. The District will focus
on recruiting females and
Hispanic candidates to
distribute information about
the District’s opportunities
and vacancies.
Partner with community
based organizations who
serve females and Hispanics
who are interested in
working in all the
classifications within the Fire
Service and Support
Services fields
Personal Contact Partner with the local
sporting programs reaching
student athletes, and
statewide organizations such
as the CAL-JAC program.
Research employment
websites and register to join
the online community.
Internet/Computer Register with websites such
as womenforhire.com and
careerwomen.com to reach
women who are interested in
the Fire Service
Outreach to CBO’s and
schools to promote a Fire
Explorer program for high
school students
Personal Contact/Social
Media
Provide a unique opportunity
to work alongside our fire
suppression professionals
Outreach to candidates to
offer practice written tests for
Firefighter applicants
Personal Contact CAL Joint Apprenticeship
Committee
October 16, 2018 BOS Minutes 347
81
Outreach to diverse CBO’s
and academic organizations,
Post job vacancies and
publications focused on
serving diverse populations
Personal Contact/Social
Media/Publication
Recruitment/Outreach team
will continue to actively seek
opportunities to speak to
academic organizations
whose members consist of
individuals diverse
backgrounds to discuss
career paths in the Fire
Service. Examples of the
groups the team has
reached out to include:
IAFF, Local 1230
IABPF - International
Association of Black
Professional
Firefighters
CA Community
Colleges
EMS Paramedic
Trade Schools
EMT programs
iWomen (International
Association of Women
in Fire
NAHF – International
Association of Female
Firefighters
Contact: Charles Thomas, Battalion Chief, Equal Employment Opportunity Coordinator
cthom@cccfpd.org or
Denise Cannon, HR Administrator
dcann@cccfpd.org
October 16, 2018 BOS Minutes 348
82
HEALTH SERVICES
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to De cember 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that Health
Services increased its workforce representation in five areas. Improvements were made to the Officials
and Administrators (Males and Whites), Professional (Males), Technician (Females and Hispanics),
Administrative Support (Females and Blacks), and Service Maintenance (Females, Blacks and
Hispanics) occupational categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, dis trict or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is
usually acquired through college training, work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical
knowledge and manual skill which can be obtained through specialized post -secondary school
education or through equivalent on-the-job training.
Administrative Support: Occupations in which workers are responsible for internal and
external communications, recording, and retrieval of data and/or information and other
paperwork required in an office such as secretaries, administrative office assistants, and police
clerks.
Protective Service Workers (Non-Sworn): Occupations that perform technical and support
work in safety or law enforcement work, which does not r equire a sworn person. Examples
include community service officers and animal control officers.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 15% 29%
Professionals 1%
Technicians 4% 1%
Administrative Support 1% 1%
Service Maintenance 3% 1% 3%
Protective Service Worker
(Non-Sworn)
October 16, 2018 BOS Minutes 349
83
HEALTH SERVICES
2017 OUTREACH AND RECRUITMENT DATA
3626 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce34
Male
(%)
Female
(%)
Working-Age
Population
by Job
Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 134 30 70 X
Underrepresentation X 28 X X
Professionals
Working-Age Population X 46 54 108,045
County Workforce 1818 25 75 X
Underrepresentation X 21 X X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 544 22 78 X
Underrepresentation X 29 X X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 978 13 87 X
Underrepresentation X 25 X X
Service Maintenance
Working-Age Population X 58 42 122,730
County Workforce 148 52 48 X
Underrepresentation X 6 X X
Protective Services (Non-Sworn)
Working-Age Population X 54 46 810
County Workforce) 4 50 50 X
Underrepresentation X 4 X X
34 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 350
84
HEALTH SERVICES
2017 OUTREACH AND RECRUITMENT DATA
3626 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity35
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or
More Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 67 13 9 6 1 0 4
Underrepresentation X X 1 8 0 0 X
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 44 12 11 20 0 0 12
Underrepresentation 16 X X 1 0 0 X
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 25 21 21 22 1 1 10
Underrepresentation 26 X X 5 X 0 X
Administrative Services
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 30 19 35 8 1 1 6
Underrepresentation 23 X X 7 0 X X
Service Maintenance
Working-Age
Population
33 10 42 12 0 0 1
County Workforce 25 23 29 18 1 0 5
Underrepresentation 8 X 13 X X 0 X
Protective Services (Non-Sworn)
Working-Age
Population
65 1 22 8 0 0 5
County Workforce 50 0 25 0 0 25 0
Underrepresentation 15 1 X 8 0 X 5
35 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used intercha ngeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. His panics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 351
85
HEALTH SERVICES
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: As of December 31, 2017, Contra Costa Health Services’ statistical data showed under -
representation of Male (Officials and Administrators, Professionals, Technicians and
Administrative Support), White (Professionals, Technicians, Administrative Support and
Protective Services Non-Sworn), Hispanic (Service Maintenance) and Asian (Protective
Services Non-Sworn) categories within its workforce.
The Health Services Department has nine Divisions providing health care and emergency
response services to the residents of Contra Costa County. The majority of our
professional classifications are dominantly held by women. Per data from the United
States Department of Labor, there is a disproportionate representation of women in
certain professions such as Registered Nurse, Social Worker, Medical and Health
Services Manager, Counselor, and Human Resources Manager.
The Department conducts its own recruitment and strives to reach a diverse applicant
pool by utilizing the County’s Outreach Mailing List consistently in addition to posting our
job announcements online to popular websites such as Craigslist, Indeed and Mons ter,
and distribution to health professional organizations and community agencies.
Objective: Increase the applicant pool of Male and White, Hispanic, and Asian candidates who meet
the minimum qualifications and maintain a diverse workforce within the Hea lth Services
Department.
Message: The Department will continue to utilize the County’s List of community/faith based
organizations and work with SPIN Recruitment Agency by posting our job
announcements to popular websites such as Indeed, Monster, and Craigslist and expand
to non-traditional sites. In addition, we participate in local job/career fairs, and partner with
our Division Managers to look for innovative ways to attract qualified candidates from
affiliated organizations, local colleges and universities.
Tools: Community/Faith based organizations
Websites geared toward Males and Whites
Publications geared toward Males and Whites
October 16, 2018 BOS Minutes 352
86
Local job/career fairs
Colleges and Universities
Professional Organizations
Message Distribution
STRATEGY
ELEMENT
TASKS
Utilize the County’s
community/faith based
organization list
Print Media/Internet Continue to send job
announcements thru General
Services to ALL
community/faith based
organizations
Expand outreach to focused
websites and organizations
Internet/Electronic Continue to work with SPIN
Recruitment Agency to
identify websites and
organizations geared toward
underrepresented categories
and post job announcements
online
Expand outreach to
publications
Print/Publication Work with SPIN Recruitment
Agency to identify
publications geared toward
underrepresented categories
and post job announcements
Attend local job and career
fairs.
Personal Contact Attend job fairs to distribute
information on the
department’s vacancies and
reach out to candidates in
person
Expand outreach to colleges
and universities
Internet/Computer/Personal
Contact
Work with Division Managers
who have affiliations with
local colleges/universities
such as UC Davis, UC
Berkeley, UCSF, Holy
Names, Mills, Kaiser Allied
Health, etc…
Expand outreach to
professional organizations
Internet/Computer/Personal
Contact
Work closely with Division
Managers who have
affiliations with professional
organizations and send job
announcements
electronically
Contact: Jo-Anne Linares, Jo-Anne.Linares@hsd.cccounty.us
(925) 957-5246
October 16, 2018 BOS Minutes 353
87
HUMAN RESOURCES
The Office of EEO analyzed the workforce underrepresentation within each dep artment. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that HR
increased its workforce representation in three areas. Improvements were made to the Officials and
Administrators (Females), Professional (Males and Whites), and Administrative Support (Females,
Hispanics and Asians) occupational categories. The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training, work experience and other training which provides comparable
knowledge such as HR professionals, accountants, and attorneys.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 20%
Professionals 9% 4%
Administrative Support 2% 4% 7%
October 16, 2018 BOS Minutes 354
88
HUMAN RESOURCES
2017 OUTREACH AND RECRUITMENT DATA
43 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce36
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County Workforce 4 0 100 X
Underrepresentation X 58 X X
Professionals
Working-Age
Population
X 46 54 108045
County Workforce 17 18 82 X
Underrepresentation X 28 X X
Administrative Support
Working-Age
Population
X 38 62 141,985
County Workforce 22 23 77 X
Underrepresentation X 15 X X
36 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 355
89
HUMAN RESOURCES
2017 OUTREACH AND RECRUITMENT DATA
43 EMPLOYEES
RACE AND ETHNICITY
Demographics by Race
and Ethnicity37
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian
Alaska
Native
(%)
Two or More
Races
(%)
Officials and Administrators
Working-Age Population 66 7 10 14 1 0 2
County Workforce 50 0 0 0 0 0 50
Underrepresentation 16 7 10 14 1 0 X
Professionals
Working-Age Population 60 7 9 21 0 0 2
County Workforce 41 24 18 12 6 0 0
Underrepresentation 19 X X 9 X 0 2
Administrative Support
Working-Age Population 53 10 19 15 1 0 2
County Workforce 18 23 23 32 0 0 5
Underrepresentation 35 X X X 1 0 X
37 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 356
90
HUMAN RESOURCES
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintaining a diverse and inclusive workforce
which is reflective of the communities that we serve. The Human Resources Department statistical
data for gender underrepresentation is listed below:
Male
• Officials and Administrators - 58%
• Professionals - 28%
• Administrative Support - 15%
We are also underrepresented in the following race and ethnic categories:
White
• Officials and Administrators - 16%
• Professionals - 19%
• Administrative Support - 35%
Black
• Officials and Administrators - 7%
Hispanic
• Officials and Administrators - 10%
Asian
• Officials and Administrators - 14%
Objective: Increase outreach to candidates for positions in the Human Resources Department.
Message: The department will continue to develop and utilize innovative recruitment tools to attract a
diverse applicant pool of qualified candidates desiring a career in government human resources
including advertising employment opportunities on websites that will reach Whites, Asian s and males.
Tools: Our current recruitment strategies include distribution of all County job opportunities to a vast
number of community and faith based organizations, colleges, cities, employment placement services,
including our own county offices, such as the Contra Costa County Library, Veterans Services and the
Employment and Human Services Department.
Our plan is to post vacancies on websites to include: CareersinGovernment, Monster, Hot Jobs, Craigs
List, CareerBuilder, Dice, Indeed, Bay Area Careers, SimplyHired, etc. and social media sites such as
October 16, 2018 BOS Minutes 357
91
Linkedin and Twitter.
We will also reach out to select universities including University of California, Berkeley, University of
California, Los Angeles, University of California, Davis. Local colleges such as Cal State East Bay,
Los Medanos and Diablo Valley as well as other adult schools in the area will be targeted. We will
continue to post on sites geared toward human resources professionals such as SHRM, CalPelra and
IPMA.
Message Distribution
STRATEGY
ELEMENT
TASKS
Attend job and career fairs
geared towards helping males,
whites and Asians find
employment.
Personal Contact Attend at least 4 job and
career fairs during the fiscal
year to distribute information
on the department’s
vacancies.
Partner with community/faith
based organizations to
outreach to males, whites and
Asians.
Personal Contact Create professional
relationships and partner with
community based
organizations such as the
Monument Crisis Center, the
RYSE Center, etc..
Research employment
websites and register to join
the online community.
Internet/Computer Advertise employment
opportunities on websites such
that will reach Whites, Asians
and men.
Post job vacancies on
websites and in publications
geared toward Asians
Publication/Print Media Post jobs on sites such as,
Asian-jobs.com, the National
Association of Asian American
Professionals, naaapsf.org,
National Asian Pacific Center,
napca.org.
Partner with our local adult
schools and community
colleges to attract and recruit
students to consider careers in
Human Resources.
Personal Contact with College
Counselors and Advisors
Attend job fairs and career
days at Martinez Adult School,
Mt, Diablo Adult Education,
West Contra Costa Adult
Education, Loma Vista Adult
Education, Acalanes Adult
Education Diablo Valley
College, Los
Medanos College
Increase utilization of social
media
Internet/Computer Advertise employment
opportunities on Facebook,
Instagram and Twitter.
Contact: Nancy Zandonella, Human Resources Department, 335-1751
October 16, 2018 BOS Minutes 358
92
LIBRARY
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Library
increased its workforce representation in four areas. Improvements were made to the Officials and
Administrator (Hispanics), Professional (Males, Blacks and Hispanics), Technical (Males and Asians)
and Administrative Support (Males) occupational categories. The job categories and definitions are
listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is
usually acquired through college training, work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical
knowledge and manual skill which can be obtained throu gh specialized post-secondary school
education or through equivalent on -the-job training such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and
external communications, recording, and retrieval of data and/or information and other
paperwork required in an office such as secretaries, administrative office assistan ts, and police
clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 17%
Professionals 3% 1% 2%
Technicians 12% 8%
Administrative Support 10%
October 16, 2018 BOS Minutes 359
93
LIBRARY
2017 OUTREACH AND RECRUITMENT DATA
295 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce38
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
Officials and
Administrators
2 0 100 X
Underrepresentation X 58 X X
Professionals
Working-Age
Population
X 46 54 108,045
Professionals 68 12 88 X
Underrepresentation X 34 X X
Technicians
Working-Ag e
Population
X 51 49 13,265
Technicians 5 40 60 X
Underrepresentation X 11 X X
Administrative Support
Working-Age
Population
X 38 62 141,985
Administrative
Support
220 25 75 X
Underrepresentation X 13 X X
38 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 360
94
LIBRARY
2017 OUTREACH AND RECRUITMENT DATA
295 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity39
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or
more
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 50 0 50 0 0 0 0
Underrepresentation 16 7 X 14 1 0 2
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 76 1 9 4 0 0 9
Underrepresentation X 6 0 17 0 0 X
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 60 0 0 20 0 0 20
Underrepresentation X 7 10 7 0 1 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 60 6 14 6 1 0 12
Underrepresentation X 4 5 9 0 0 X
39 The Census Bureau categorizes ethnicity into two categories: H ispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 361
95
LIBRARY
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. According to the
December 31, 2017 Contra Costa County Outreach and Recruitment Data Report,
males are under-represented in the Library Department by the following percentage
in four (4) occupational categories noted below:
Officials and Administrators: 58%
Professionals: 34%
Technicians: 11%
Administrative Support: 13%
In addition, demographics by race and ethnicity show an underrepresentation of
Asians by 14%, Whites by 16%, Blacks by 7% in the Officials and Administrators
Occupational Category and an underrepresentation of Blacks b y 7% and Hispanics
by 10% in the Technicians Occupational Category and an underrepresentation of
Asians by 17% in the Professionals Occupational Category.
Objective: Ensure that the Library workforce reflects the diversity of the County by continuing to
diversify staff in all Library work units while increasing the presence of males, Whites,
Blacks, Hispanics and Asians within the workforce.
The Library currently meets this objective in the following areas:
1.
2. Demographics by race and ethnicity in the Administrative Support Occupational
Category.
Message: The Library will continue to conduct targeted outreach efforts to in order to create a
more diverse applicant pool of qualified candidates to apply for vacant positions. This
effort will continue to be a part of the Library’s overall Marketing Communications Plan
with the strategic goal of promoting the Library’s value, programs and opportunities to
the community.
October 16, 2018 BOS Minutes 362
96
Measurement: The Library will conduct an annual review of applicants as well as employ ees hired
and promoted.
Tools: Social Media
Local job fairs and career days
Local community based events
Websites geared towards helping men find employment
Bridge to Success pilot program
Informational bookmarks
Other Library literature
Message Distribution
STRATEGY
ELEMENT
TASKS
Participate in job and career
fairs, attend community
events, and staff employer
recruiter booth.
Network with local community
colleges and universities to
increase the applicant pool
and explain the Library’s
recruitment mission and
goals.
Personal Contact/Outreach
and Engagement
The Libraries will continue to
participate in local community
events that target
underserved populations.
We will inform and promote
community library job and
volunteer opportunities.
Community Events:
California Library
Association
Conference
John Muir Days
Job Fairs:
Diablo Valley Career
Fair
San Jose State Public
Service Career Fair
Update promotional
bookmark explaining
outreach objective for each
external recruitment.
Publication/Print Media Distribute and promote
recruitments at all 26 Library
locations.
Update and expand existing
list of websites where job
vacancies are posted to
include websites that are
geared towards males and
others.
Internet/Computer
Personal Contact/Outreach
and Engagement
Research employment
websites for males.
Research employment
websites for others.
Contact, register and post
vacancies at:
October 16, 2018 BOS Minutes 363
97
Asian-jobs.com
Diversity.com
ncfm.org (National
Coalition for Men)
naaapsf.org (National
Association of Asian
American
Professionals)
Shelter, Inc.
Salvation Army
League of San
Francisco
Utilize social media to expand
exposure of open job
opportunities.
Electronic Media Post link to open job
opportunities on the
Department’s Facebook
page.
Participate in Bridge to
Success Pilot Program for
individuals with
developmental disabilities.
Recruitment Add two (2) Clerk-Beginning
Level Project positions, hire
employees and evaluate
performance on a monthly
basis.
Contact: Beth A. Kilian, Administrative Services Officer
bkilian@ccclib.org
October 16, 2018 BOS Minutes 364
98
PROBATION
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical d ata from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that Probation
increased its workforce representation in six areas. Improvements were made to the Officials and
Administrators (Females), Professional (Males, Whites and Asians), Technical (Males and Whites),
Administrative Support (Whites and Asians), Service Maintenance (Males, Blacks and Hispanics) and
Protective Services Non-Sworn (Males, Females and Hispanics) occupational categories. The job
categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is
usually acquired through college training, work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific o r technical
knowledge and manual skill which can be obtained through specialized post -secondary school
education or through equivalent on -the-job training such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and
external communications, recording, and retrieval of data and/or information and other
paperwork required in an office such as secretaries, administrative office assistants, and police
clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public suc h as maintenance
workers and custodians.
Protective Service Workers (Sworn): Occupations in which workers are entrusted with public
safety, security and protection from destructive forces.
Protective Service Workers (Non-Sworn): Occupations that perform technical and support
work in safety or law enforcement work, which does not require a sworn person. Examples
include community service officers and animal control officers.
40 The department did not have the Protective Services (Sworn) category in their workforce in 2015.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 7%
Professionals 19% 9% 6%
Technicians 50% 25%
Administrative Support 6% 15%
Service Maintenance 11% 9% 12%
Protective Services-Sworn40
Protective Services-Non Sworn 2% 5%
October 16, 2018 BOS Minutes 365
99
PROBATION
2017 OUTREACH AND RECRUITMENT DATA
357 EMPLOYEES
GENDER
Demographics By
Gender
Total
Department
Workforce41
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 13 62 38 X
Underrepresentation X X 4 X
Professionals
Working-Age Population X 46 54 108,045
County Workforce 150 65 35 X
Underrepresentation X X 19 X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 3 100 0 X
Underrepresentation X X 49 X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 40 8 92 X
Underrepresentation X 30 X X
Service Maintenance
Working-Age Population X 58 42 122,730
County Workforce 15 80 20 X
Underrepresentation X X 22 X
Protective Services (Sworn)
Working-Age Population X 82 18 9,480
County Workforce 105 41 59 X
Underrepresentation X 41 X X
Protective Services (Non-Sworn)
Working-Age Population X 54 46 810
County Workforce 150 59 41 X
Underrepresentation X X 5 X
41 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 366
100
PROBATION
2017 OUTREACH AND RECRUITMENT DATA
357 EMPLOYEES
RACE AND ETHNICITY
Demographics by Race
and Ethnicity42
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian
Alaska
Native
(%)
Two or
More Races
(%)
Officials and Administrators
Working-Age Population 66 7 10 14 1 0 2
County Workforce 62 15 15 0 0 0 8
Underrepresentation 4 X X 14 1 0 X
Professionals
Working-Age Population 60 7 9 21 0 0 2
County Workforce 55 29 6 6 0 0 3
Underrepresentation 5 X 3 15 0 0 X
Technicians
Working-Age Population 51 7 10 27 0 1 2
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 7 10 27 0 1 2
Administrative Services
Working-Age Population 53 10 19 15 1 0 2
County Workforce 53 18 8 18 0 0 5
Underrepresentation 0 X 11 X 1 0 X
Service Maintenance
Working-Age Population 33 10 42 12 0 0 1
County Workforce 33 40 20 0 0 0 7
Underrepresentation 0 X 22 12 0 0 X
Protective Services (Sworn)
Working-Age Population 53 15 15 10 3 0 3
County Workforce 38 30 26 4 0 0 3
Underrepresentation 15 X X 6 3 0 0
Protective Services (Non-Sworn)
Working-Age Population 65 1 22 8 0 0 5
County Workforce 28 37 27 3 1 1 4
Underrepresentation 37 X X 5 X X 1
42 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or La tino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 367
101
PROBATION
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31, 2017,
the Probation Department’s statistical data indicates the following:
Males are underrepresented in Administrative Support and Protective Service
(Sworn) positions;
Females are underrepresented in Professional, Technical, and Service
Maintenance positions;
Whites are underrepresented in Protective Services (Sworn and Non -sworn)
positions;
Blacks are underrepresented in Technical positions;
Hispanics are underrepresented in Technical, Administrative Support and Service
Maintenance positions;
Asians are underrepresented in Official and Administrator, Professional, Technical
and Services Maintenance positions;
Objective: Increase the applicant flow of underrepresented groups within our workforce by
conducting specific outreach and recruitment efforts to educational and vocational training
service providers, professional organizations, and online recruitment and employment
resource sites who serve the populations listed above.
Message: Probation will conduct strategic outreach efforts with the groups and organizations listed
above and online websites that serve those populations where we have
underrepresentation. The proactive measures will help to create a more diverse applicant
pool of qualified candidates to apply for departmental vacancies.
Tools: Local job fairs and career days
Local Adult Education and vocational training programs
Local colleges and universities
Websites geared towards helping underrepresented populations find employment
Informational brochures
October 16, 2018 BOS Minutes 368
102
Message Distribution
STRATEGY
ELEMENT
TASKS
Outreach to diverse
colleges and
universities with
criminal justice and
corrections related
degree programs
Personal Contact Create professional relationships and
partner with local colleges such as
DVC, Los Medanos, and Cal State East
Bay to make presentations in classes,
and provide organized tours of facilities
for students
Outreach to diverse
Adult Education and
vocational training
programs with technical
and administrative
support skill
development programs
Personal Contact Create professional relationships and
partner with local education programs
such as the five regional Adult
Education centers, and the Contra
Costa County Office of Education
Increase ease of
communicating
employment
opportunities, minimum
qualifications for hire,
and applicant
processes through
printed resource
material
Publication / Print
Media
Create recruitment fliers to be
disseminated by staff when they come
in contact with potential job applicants
Use employment
websites focused on
the underrepresented
populations
Internet/Computer Register with websites such as
http://www.opportunityjunction.org/ and
http://www.eastbayworks.com/cccounty/
to post vacancies and open
recruitments
Attend job and career
fairs focused on the
underrepresented
populations
Personal Contact Attend at least three job and career fairs
during the fiscal year sponsored by
organizations that identify with diverse
populations
Contact: Jeff Waters
Jeff.waters@prob.cccounty.us
October 16, 2018 BOS Minutes 369
103
PUBLIC DEFENDER
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Public
Defender increased its workforce representation in three areas. Improvements were made to the
Officials and Administrator (Males and Whites), Professional (Blacks and Hispanics), and
Administrative Support (Males, Whites and Blacks) occupational categories occupational categories.
The job categories and definitions are listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is
usually acquired through college training, work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Administrative Support: Occupations in which workers are responsible for internal and
external communications, recording, and retrieval of data and/or information and other
paperwork required in an office such as secretaries, administrative office assistants, and police
clerks.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 22% 11%
Professionals 3% 6%
Administrative Support 11% 4% 1%
October 16, 2018 BOS Minutes 370
104
PUBLIC DEFENDER
2017 OUTREACH AND RECRUITMENT PLANS
127 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce43
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age Population
X 58 42 82,930
Officials and
Administrators
9 22 78 X
Underrepresentation X 36 X X
Professionals
Working-Age Population X 46 54 108045
Professionals 86 40 60 X
Underrepresentation X 6 X X
Administrative Support
Working-Age Population X 38 62 141,985
Administrative Support 32 19 81 X
Underrepresentation X 19 X X
43 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 371
105
PUBLIC DEFENDER
2017 OUTREACH AND RECRUITMENT PLANS
127 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and
Ethnicity44
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
2 or more
Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 78 22 0 0 0 0 0
Underrepresentatio
n
X X 10 14 1 0 2
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 62 12 15 3 0 0 8
Underrepresentatio
n
X X X 18 0 0 X
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 28 25 47 0 0 0 0
Underrepresentatio
n
25 X X 15 1 0 2
44 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latin o," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 372
106
PUBLIC DEFENDER
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of De cember 31,
2017, the Office of the Public Defender workforce statistical data indicates the
following:
Males are underrepresented in the Officials and Administrators and
Administrative Support positions;
Whites are underrepresented in the Administrative S upport positions.
Hispanics and Asians are underrepresented in Officials and Administrator
positions; and
Asians are underrepresented in Officials and Administrators, Professional and
Administrative Support Positions.
Objectives:
Increase the number of males in Administrator and Administrative Support positions;
Increase the number of Hispanics in Administrator positions;
Increase the number of Whites in Administrative Support positions; and
Increase the number of Asians in all positions.
Message: The Department will continue to conduct strategic and targeted outreach efforts to
traditionally underrepresented racial minorities, in order to create a more diverse
applicant pool of qualified candidates to apply for vacant positions.
Tools: We will continue to increase the pool of eligible applicants for positions in the
department by targeting outreach to local colleges, universities and law schools with
our above objectives in mind.
Accomplishments: Our Department is primarily financed through the general fund; therefore, we
are limited in the number of positions that we are able to fill through attrition vacancies. However,
we have recently been successful in securing outside grant funding for some positions. In the future
we will continue to strive to hire into these positions from a broad applicant pool with a focus on
our underrepresented categories.
Finally, to maintain the diversity of our workforce, the Department Head has formed a diversity
committee to actively recruit minority attorney and graduate law clerk applicants from a diverse array of
law schools. The Department strives to promote diversity and achieve gender-balance in the graduate
law clerk pool, as this group is a significant source of applicants for the entry-level attorney positions.
October 16, 2018 BOS Minutes 373
107
Although the workforce of this Department represents only a small portion of the County’s overall
workforce, because of the significant diversity in our client population, we are uniquely focused and
committed to achieving the County EEO and Recruitment targets.
Message Distribution
STRATEGY
ELEMENT
TASKS
Network with Universities
such as Cal State East Bay,
UCLA, USC, UC Davis, SF
State, USF Golden Gate
Univ. and local Community
Colleges as well as local
High Schools
to increase the applicant pool
and explain the Office of the
Public Defender’s outreach
and recruitment mission and
goals
Publication
Print Media
Reach out to Academic
Career Advisors and Alumni
Relations to explain the
department’s goal of
increasing the pool of
qualified males; send
informational letters local
High Schools and
Community Colleges.
Attend local job and diversity
fairs at UC Hastings; Cal
State East Bay, UC Davis,
SF State, USF
Golden Gate Univ.
Personal Contact Attend and provide flyers that
can be distributed at job and
diversity fairs; explain
department goals to attain
diversity and gender-balance
in the workforce.
Email job vacancies to local
colleges, universities and law
schools to reach a greater
applicant pool
Electronic Send job announcements of
vacancies via email including
the department goals of
attracting a workforce that is
diverse and gender-
balanced.
Contact: Joanne Sanchez-Rosa, Administrative Services Officer 925-335-8065
Joanne.Sanchez-Rosa@pd.cccounty.us
October 16, 2018 BOS Minutes 374
108
PUBLIC WORKS
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Public
Works increased its workforce representation in six areas. Improvements were made to the Officials
and Administrators (Males, Whites and Hispanics), Professional (Males and Whites), Technician (Males
and Whites), Administrative Support (Males and Blacks), Skilled Craft (Females, Whites and Blacks)
and Service Maintenance (Females) occupational categories. The job categories and definitions are
listed below.
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district o r
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is
usually acquired through college training, work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical
knowledge and manual skill which can be obtained through specialized post -secondary school
education or through equivalent on -the-job training such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for inte rnal and
external communications, recording, and retrieval of data and/or information and other
paperwork required in an office such as secretaries, administrative office assistants, and police
clerks.
Skilled Crafts: Occupations in which workers perform jobs which require special manual skill
and a thorough and comprehensive knowledge of the processes involved such as electricians
and tree trimmers.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public such as maintenance
workers and custodians.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 16% 2% 5%
Professionals 3% 3%
Technicians 6% 4%
Administrative Support 4% 4%
Skilled Crafts 2% 4% 1%
Service Maintenance 2%
October 16, 2018 BOS Minutes 375
109
PUBLIC WORKS
2017 OUTREACH AND RECRUITMENT DATA
371 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce45
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age Population
X 58 42 82,930
County Workforce 12 92 8 X
Underrepresentation X X 34 X
Professionals
Working-Age Population X 46 54 108045
County Workforce 82 52 48 X
Underrepresentation X X 6 X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 38 79 21 X
Underrepresentation X X 28 X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 55 33 67 X
Underrepresentation X 5 X X
Skilled Craft
Working-Age Population X 95 5 41,025
County Workforce 65 98 2 X
Underrepresentation X X 3 X
Service Maintenance
Working-Age Population X 58 42 122,730
County Workforce 119 87 13 X
Underrepresentation X X 29 X
45 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 376
110
PUBLIC WORKS
2017 OUTREACH AND RECRUITMENT DATA
371 EMPLOYEES
RACE AND ETHNICITY
Demographics by Race
and Ethnicity46
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
2 or more
Races
(%)
Officials and Administrators
Working-Age Population 66 7 10 14 1 0 2
County Workforce 67 0 17 8 0 0 8
Underrepresentation X 7 X 6 1 0 X
Professionals
Working-Age Population 60 7 9 21 0 0 2
County Workforce 68 2 10 15 0 0 5
Underrepresentation X 5 X 6 0 0 X
Technicians
Working-Age Population 51 7 10 27 0 1 2
County Workforce 71 0 5 5 3 3 13
Underrepresentation X 7 5 22 X X X
Administrative Support
Working-Age Population 53 10 19 15 1 0 2
County Workforce 56 4 13 20 4 2 2
Underrepresentation X 6 6 X X X 0
Service Maintenance
Working-Age Population 33 10 42 12 0 0 1
County Workforce 40 18 33 4 1 2 2
Underrepresentation X X 9 8 X X X
Skilled Craft Workers
Working-Age Population 49 6 35 7 1 0 1
County Workforce 65 6 15 8 0 3 3
Underrepresentation X 0 20 X 1 X X
46 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "His panic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican , or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 377
111
PUBLIC WORKS
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities we serve. As of December 31, 2017, the
Public Works Department statistical data indicates the following:
Women are underrepresented in Officials and Administrators, Technical, and
Service Maintenance positions.
Latinos are underrepresented in Skilled Craft positions.
African Americans are underrepresented in Officials and Administrators and
Technical positions.
Asian Americans are underrepresented in Technical positions.
Objective: Increase the applicant flow of underrepresented gr oups within our workforce by
conducting specific outreach and targeted recruitment efforts to Community/Faith Based
Organizations, Professional Groups and online recruitment sites who serve the
populations listed above.
Message: The Public Works Department will conduct strategic and targeted recruitment efforts to
create a more diverse applicant pool of qualified candidates for vacant positions. We will
electronically send these organizations recruitment information for all open positions
within the department during the fiscal year. This targeted recruitment method will help
to create a more diverse applicant pool of qualified candidates to apply for Public Works
positions.
Tools:
Community/ faith based organizations
Local job fairs and career days
Colleges and universities
University journals and alumni associations
Websites that cater to our target audiences
Create and distribute informational brochures
Work with education sector to identify potential student interns interested in Public
Works careers
October 16, 2018 BOS Minutes 378
112
Message Distribution
STRATEGY
ELEMENT
TASKS
Create brochure that
explains the Public Works
department outreach and
recruitment mission and
goals.
Publication and
Print Media
Send brochures to CBOs such as
Rubicon, St. Vincent de Paul of
Alameda and Contra Costa Counties,
Job Train, and Green Job Corps.
Brochures will also be distributed at job
and career fairs, as well as
conferences and seminars.
Attend job and career fairs
that serve women and
people of color
Personal Contact Attend at least 2 job fairs hosted by
colleges, universities, community
based organizations and professional
organizations that serve women and
people of color.
Post job vacancies online to
reach Public Works target
audience.
Electronic Post job opportunities on websites that
target job seekers that are women and
people of color, such as
tradeswomen.org, womenforhire.com;
Society for Black Engineers, Society
for Women Engineers, Society for
Hispanic Engineers, etc.
Develop relationships with
organizations that have
apprentice and training
programs for trades
occupations
Personal contact Partner with local CBOs,
apprenticeship, and training programs
for trades occupations (i.e. Green Job
Corps, Treasure Island Job Corps, and
Job Train), to assist the department in
identifying a diverse pool of candidates
that may be interested in applying for
Public Works positions.
Develop relationships with
colleges, trade schools and
universities to participate in
job fairs and advertise job
opportunities.
Personal contact Partner with community colleges, trade
schools and California universities to
attend their sponsored job fairs ad
post on their job boards (i.e. Contra
Costa Community Colleges, Universal
Technical Institute, IBT Tech, UCs and
CSUs)
Ensure that oral board and
interview panels reflect the
diversity of the candidate
pool
Personal contact When contacting potential oral board
raters and identifying interview panel
members, ensure that there is
appropriate diversity on the panels.
October 16, 2018 BOS Minutes 379
113
Utilize and promote Summer
Student Intern program with
a goal of hiring women and
people of color.
Electronic and
Personal Contact
Continue to advertise Summer Student
Intern program and identify students
that are interested in engineering
occupations, or are currently
engineering students.
Pursue new contract with Contra Costa
County Office of Education to hire
Student Interns between the ages of
18 – 23 who have barriers to obtaining
employment.
Contact: Carrie Ricci, Deputy Director
Carrie.ricci@pw.cccounty.us
October 16, 2018 BOS Minutes 380
114
SHERIFF-CORONER
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the Sheriff-
Coroner increased its workforce representation in seven areas. Improvements were made to the
Officials and Administrator (Females and Hispanics), Professional (Males, Blacks and Hispanics),
Technicians (Whites), Administrative Support (Males and Hispanics), Service Maintenance (Males and
Hispanics), Protective Services Worker – Sworn(Hispanics), and Protective Services Worker- Non
Sworn (Females, Blacks and Hispanics) occupational categories. The job categories and definitions
are listed below.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 6% 11%
Professionals 9% 3% 2%
Technicians 6%
Administrative Support 2% 2% 6%
Service Maintenance 2% 6%
Protective Service (Sworn) 1%
Protective Service (Non-Sworn) 11% 5% 3%
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training or through work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
Service-Maintenance: Occupations in which workers perform duties that result in or contribute
to the comfort, convenience, hygiene or safety of the general public such as maintenance workers
and custodians.
Protective Service Workers (Sworn): Occupations in which workers are entrusted with public
safety, security and protection from destructive forces.
Protective Service Workers (Non-Sworn): Occupations that perform technical and support work
in safety or law enforcement work, which does not require a sworn person. Examples include
community service officers and animal control officers.
October 16, 2018 BOS Minutes 381
115
SHERIFF-CORONER
2017 OUTREACH AND RECRUITMENT DATA
1090 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce47
Male
(%)
Female
(%)
Working-Age
Population
by Job
Category
Officials and Administrators
Working-Age
Population
X 58 42 82,930
County Workforce 9 56 44 X
Underrepresentation X 2 X X
Professionals
Working-Age
Population
X 46 54 108,045
County Workforce 118 71 29 X
Underrepresentation X X 25 X
Technicians
Working-Age
Population
X 51 49 13,265
County Workforce 129 78 22 X
Underrepresentation X X 27 X
Administrative Support
Working-Age
Population
X 38 62 141,985
County Workforce 183 20 80 X
Underrepresentation X 18 X X
Service Maintenance
Working-Age
Population
X 58 42 122,730
County Workforce 28 79 21 X
Underrepresentation X X 21 X
Protective Services (Sworn)
Working-Age
Population
X 82 18 9,480
County Workforce 524 84 16 X
Underrepresentation X X 2 X
Protective Services (Non-Sworn)
Working-Age
Population
X 54 46 810
County Workforce 99 65 35 X
Underrepresentation X X 11 X
47 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 382
116
SHERIFF-CORONER
2017 OUTREACH AND RECRUITMENT DATA
1090 EMPLOYEES
RACE AND ETHNICITY
Demographics by Race
and Ethnicity48
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or
More Races
(%)
Officials and Administrators
Working-Age Population 66 7 10 14 1 0 2
County Workforce 89 0 11 0 0 0 0
Underrepresentation X 7 X 14 1 0 2
Professionals
Working-Age Population 60 7 9 21 0 0 2
County Workforce 73 6 8 3 0 0 10
Underrepresentation X 1 1 18 0 0 X
Technicians
Working-Age Population 51 7 10 27 0 1 2
County Workforce 74 5 13 5 1 0 3
Underrepresentation X 2 X 22 X 1 X
Administrative Services
Working-Age Population 53 10 19 15 1 0 2
County Workforce 52 15 20 7 2 0 4
Underrepresentation 1 X X 8 X 0 X
Service Maintenance
Working-Age Population 33 10 42 12 0 0 1
County Workforce 18 4 50 21 0 0 7
Underrepresentation 15 6 X X 0 0 X
Protective Services (Sworn)
Working-Age Population 53 15 15 10 3 0 3
County Workforce 67 8 16 4 1 0 4
Underrepresentation X 7 X 6 2 0 X
Protective Services (Non-Sworn)
Working-Age Population 65 1 22 8 0 0 5
County Workforce 54 16 19 7 2 0 2
Underrepresentation 11 X 3 1 X 0 3
48 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People who do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 383
117
SHERIFF-CORONER
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December 31, 2017,
the Office of the Sheriff’s workforce statistical data indicates the following:
Asians are underrepresented in Officials and Administrators, Professional, and
Technical positions;
Blacks are underrepresented in Officials and Administrators positions;
Whites are underrepresented in Protective Services (Non -Sworn), and Service
Maintenance positions;
Females are underrepresented in Professional, Technical, Service Maintenance
and Protective Services (Non-Sworn) positions;
Males are underrepresented in Administrative Support positions.
Objective: Increase the recruitment efforts to these underrepresented groups by conducting focused
outreach efforts to community organizations, professional groups and online recruitment
sites that serve these underrepresented populations.
Message: The Office will conduct strategic and targeted outreach efforts to these underrepresented
groups to create a more diverse applicant pool of qualified candidates to apply for and be
successful in the civilian positions within the law enforcement community.
Tools: Community Events and Organizations
Local Job Fairs and Career Days
Local Colleges and Universities
Websites geared toward a diverse group of job seekers interested in working for a law
enforcement agency
Incorporate non-sworn job opportunities into our robust sworn recruitment efforts
October 16, 2018 BOS Minutes 384
118
Message Distribution
STRATEGY
ELEMENT
TASKS
Create brochures, flyers,
posters and billboards that
demonstrate the diverse
workforce of the Office of the
Sheriff. To include the non-
sworn positions that support
the mission of law
enforcement.
Publication
Print Media
Websites
Distribute brochures
throughout local and
statewide colleges,
universities, military bases
and East Bay Works.
Place advertisements on the
SO Law Enforcement
Training Center Website,
Facebook, Twitter,
Claycord.com, and Deputy
Sheriff Association Websites.
Attend job fairs and career
days that serve a large
ethnically diverse population
Personal Contact Set up class presentations,
working job fairs, and
workshops at Asian and
female-dominated high
school, colleges, and
universities.
Increase exposure in the
local communities served by
participating in local and
community events.
Personal Contact Set up recruiting stations at
events such as Art and Wine
Festivals, Music in the Park,
Farmer’s Markets, etc. Also
canvass shopping centers,
strip malls, local down-town
shopping areas, fitness
centers, etc.
Contact: Mary Jane Robb, Sheriff’s Chief of Management Services
mrobb@so.cccounty.us
October 16, 2018 BOS Minutes 385
119
TREASURER-TAX COLLECTOR
The Office of EEO analyzed the workforce underrepresentation within each department. EEO
compared the department’s workforce statistical data from December 31, 2015 to December 31, 2017
to help determine the effectiveness of the County’s outreach program. The data shows that the
Treasurer/Tax Collector increased its workforce representation in four areas. Improvements were
made to the Officials Administrator (Females and Hispanics), Professionals (Males and Whites),
Technicians (Males and Whites) and Administrative Support (Females and Whites) occupational
categories. The job categories and definitions are listed below.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators 25% 25%
Professionals 47% 23%
Technicians 25% 25%
Administrative Support 23% 12%
Officials and Administrators: Occupations in which employees set broad policies, exercise
overall responsibility for execution of these policies, or direct individual departments or special
phases of the agency's operations, or provide specialized consultation on a regional, district or
area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge which is usually
acquired through college training or through work experience and other training which provides
comparable knowledge such as HR professionals, accountants, and attorneys.
Technicians: Occupations which require a combination of basic scientific or technical knowledge
and manual skill which can be obtained through specialized post -secondary school education or
through equivalent on-the-job training. They include jobs such as laboratory analysts and civil
engineering assistants.
Administrative Support: Occupations in which workers are responsible for internal and external
communications, recording, and retrieval of data and/or information and other paperwork required
in an office such as secretaries, administrative office assistants, and police clerks.
October 16, 2018 BOS Minutes 386
120
TREASURER-TAX COLLECTOR
2017 OUTREACH AND RECRUITMENT DATA
31 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce49
Male
(%)
Female
(%)
Working Age
Population by
Job Category
Officials and Administrators
Working-Age Population X 58 42 82,930
County Workforce 4 25 75 X
Underrepresentation X 33 X X
Professionals
Working-Ag e Population X 46 54 108,045
County Workforce 6 67 33 X
Underrepresentation X X 21 X
Technicians
Working-Age Population X 51 49 13,265
County Workforce 4 25 75 X
Underrepresentation X 26 X X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 17 6 94 X
Underrepresentation X 32 X X
49 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 387
121
TREASURER-TAX COLLECTOR
2017 OUTREACH AND RECRUITMENT DATA
31 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race
and Ethnicity50
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian
Alaska
Native
(%)
Two or
More Races
(%)
Officials and Administrators
Working-Age
Population
66 7 10 14 1 0 2
County Workforce 25 0 25 25 0 0 25
Underrepresentation 41 7 X X 1 0 X
Professionals
Working-Age
Population
60 7 9 21 0 0 2
County Workforce 83 0 0 17 0 0 0
Underrepresentation X 7 9 4 0 0 2
Technicians
Working-Age
Population
51 7 10 27 0 1 2
County Workforce 25 75 0 0 0 0 0
Underrepresentation 26 X 10 27 0 1 2
Administrative Support
Working-Age
Population
53 10 19 15 1 0 2
County Workforce 35 24 18 12 0 6 6
Underrepresentation 18 X 1 3 1 X X
50 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispani c," "Latino," and "Spanish" are used interchangeably. Some
respondents identify with all three terms while others may identify with only one of these three specific terms. Hispanics or Latinos who identify with the terms "Hispanic," "Latino," or
"Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican, Puerto Rican, or Cuban. People w ho do not identify with one of the
specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are those whose origins are from Spain, the Spanish-speaking countries of Central or South America,
or the Dominican Republic.
October 16, 2018 BOS Minutes 388
122
TREASURER-TAX COLLECTOR
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: The Board of Supervisors remains committed to maintain a diverse and inclusive
workforce which is reflective of the communities that we serve. As of December
31, 2017, the Office of Treasurer – Tax Collector statistical data indicates the
following:
Males are underrepresented in Officials & Administrators positions (33%) in
Technical positions (26%) and in Administrative Support (32%);
Females are underrepresented in Professional positions (21%);
Blacks (7%) and Whites 41%) are underrepresented in Officials and
Administrator positions;
Blacks (7%) and Hispanics (9%) are underrepresented in Professional
positions;
Hispanics (10%), Whites (26%) and Asians (27%) are underrepresented in
Technical positions;
Whites (18%) are underrepresented in Administrative Support positions.
Objective: Increase the applicant flow of underrepresented groups within our workforce by HR
department conducting specific outreach and recruitment efforts to Community/Faith
Based Organizations (CBOs), Professional Groups and online recruitment sites who
serve the populations listed above.
Message: Human Resources will conduct strategic outreach efforts to community/faith based
organizations, professional groups and online websites that serve those populations
where we have underrepresentation. We request Human Resources in their outreach
efforts to electronically send these organizations all
October 16, 2018 BOS Minutes 389
123
open vacancies within our department during the fiscal year. This
proactive measure will help to create a more diverse applicant pool of
qualified candidates to apply for departmental vacancies.
Tools: Distribute information to CBOs
Local job fairs and career days
Local colleges and universities
Websites geared towards recruiting Whites and males to Officials
and Administrators, Technicians and Administrative Support
positions
Websites geared towards recruiting Black, Hispanic and females
to Professional positions
Websites geared towards recruiting Asians to Technicians
positions.
Message Distribution
STRATEGY
ELEMENT
TASKS
Partner with Community
Based Organizations
who serve males who
are interested in
working in the Officials
and Administrators,
Technical and
Administrative Support
fields
Personal Contact/E-mail County to partner with CBOs and
professional organizations. Send job
announcements of vacancies via e- mail
or by mail to attract a workforce that is
diverse and gender balanced.
We recommend HR
attend job and career
fairs geared towards
helping Native
Hawaiian/Pacific
Islanders, Blacks and
White males find
employment as Officials
& Administrators and
Asian, Black and
Hispanic females for
Professional vacancies
Personal Contact County HR Representative to attend job
and career fairs during the fiscal year.
The County will focus on recruiting males
for Official & Administrative opportunities
and females for Professional opportunities
when distributing information about the
department’s vacancies.
October 16, 2018 BOS Minutes 390
124
E-mail job vacancies to
local community
colleges and
universities to reach a
greater applicant pool
Personal
Contact/Electronic
HR to send job announcements of
vacancies via e-mail to local colleges
such as DVC, Los Medanos and Cal
State East Bay.
Partner with
professional
organizations to reach
out to Native
Hawaiian/Pacific
Islanders, Blacks,
Asians and White males
to apply for Officials/
Administrators and
Professional positions
within our workforce
Personal
Contact/Electronic
Register and post job vacancies on
websites such as California State
Association of Counties (CSAC)
www.counties.org/,
www.californiacitynews.org, the National
Association of Black Accountants Inc.
www.sfnabainc.com, and the National
Asian American Society of Accountants
(NAASA) www.idealist.org
Research employment
websites and register to
join the online
community
Electronic Register and post job vacancies on
websites such as www.indeed.com,
www.sfbay.craigslist.org, and
www.bayareacareer.com/bay_area.php
Contact: Ronda Boler, (925) 957-2888
Ronda.Boler@tax.cccounty.us
October 16, 2018 BOS Minutes 391
125
VETERANS SERVICES
The Office of EEO analyzed the workforce underrepresentation within each department.
EEO compared the department’s workforce statistical data from December 31, 2015 to
December 31, 2017 to help determine the effectiveness of the County’s outreach
program. The data shows that Veterans Services increased its workforce representation
in two areas. Improvements were made to the Professional (Males and Whites) and
Administrative Support (Females and Whites) job categories. The job categories and
definitions are listed below.
Males Females Whites Blacks Hispanics Asians
Officials and Administrators
Professionals 7% 3%
Administrative Support 17% 17%
Officials and Administrators: Occupations in which employees set broad policies,
exercise overall responsibility for execution of these policies, or direct individual
departments or special phases of the agency's operations, or provide specialized
consultation on a regional, district or area basis such as Department Heads.
Professionals: Occupations which require specialized and theoretical knowledge
which is usually acquired through college training or through work experience and
other training which provides comparable knowledge such as HR professionals,
accountants, and attorneys.
Administrative Support: Occupations in which workers are responsible for internal
and external communications, recording, and retrieval of data and/or information and
other paperwork required in an office such as secretaries, administrative office
assistants, and police clerks.
October 16, 2018 BOS Minutes 392
126
VETERANS SERVICES
2017 OUTREACH AND RECRUITMENT DATA
10 EMPLOYEES
GENDER
Demographics
By Gender
Total
Department
Workforce51
Male
(%)
Female
(%)
Working-Age
Population by
Job Category
Officials and Administrators
Working-Age Population
X 58 42 82,930
County Workforce 1 100 0 X
Underrepresentation X X 42 X
Professionals
Working-Age Population X 46 54 108,045
County Workforce 6 67 33 X
Underrepresentation X X 21 X
Administrative Support
Working-Age Population X 38 62 141,985
County Workforce 3 33 67 X
Underrepresentation X 5 X X
51 The total number of people who had worked for the County at least one day during the 2017 calendar year.
October 16, 2018 BOS Minutes 393
127
VETERANS SERVICES
2017 OUTREACH AND RECRUITMENT DATA
10 EMPLOYEES
RACE AND ETHNICITY
Demographics by
Race and Ethnicity52
White
(%)
Black
(%)
Hispanic
(%)
Asian
(%)
Native
Hawaiian/
Pacific
Islander
(%)
American
Indian/
Alaska
Native
(%)
Two or
more
Races
(%)
Officials and Administrators
Working-Age
Population 66 7 10 14 1 0 2
County Workforce 100 0 0 0 0 0 0
Underrepresentation X 7 10 14 1 0 2
Professionals
Working-Age
Population 60 7 9 21 0 0 2
County Workforce 83 0 17 0 0 0 0
Underrepresentation X 7 X 21 0 0 2
Administrative Support
Working-Age
Population 53 10 19 15 1 0 2
County Workforce 67 0 0 0 0 0 33
Underrepresentation X 10 19 15 1 0 X
52 The Census Bureau categorizes ethnicity into two categories: Hispanic or Latino OR not Hispanic or Latino. The terms "Hispanic," "Latino," and "Span ish" are used
interchangeably. Some respondents identify with all three terms while others may identify with only one of these thre e specific terms. Hispanics or Latinos who
identify with the terms "Hispanic," "Latino," or "Spanish" are those who classify themselves in one of the specific Hispanic, Latino, or Spanish categories as Mexican,
Puerto Rican, or Cuban. People who do not identify with one of the specific origins listed indicate that they are "another Hispanic, Latino, or Spanish origin" are
those whose origins are from Spain, the Spanish-speaking countries of Central or South America, or the Dominican Republic.
October 16, 2018 BOS Minutes 394
128
VETERANS SERVICES
OUTREACH AND RECRUITMENT PLAN
FY 2018-2019
Issue: As of December 31, 2017, the Veterans Service Department’s statistical data
reflects an under-representation for Women – 42% Officials and Administrators and 21%
in Professionals. Officials and Administrators are under-represented in: 7%-Blacks; 10%-
Hispanics; 14%-Asians. Professionals are under-represented in: 7%-Blacks; 21%-
Asians. Administrative Support are under-represented in: 10%-Blacks; 19% Hispanics;
15%-Asians (As of June 1, 2018 Veterans Services hired an employee of Hispanic
ethnicity).
Objective: Increase the visibility of Asians, Hispanics, African Americans, and Women
within the workforce. The department will create and nurture partnerships with Community
Based Organizations (CBOs) to ensure that we keep them informed about job vacancies
and other resources within the County.
Message: The Department will conduct strategic and targeted outreach efforts to Asians,
African American, Hispanics, and Women in order to create a more diverse applicant pool
of qualified candidates to apply for vacant positions.
Veterans Services has 9.5 FTE with no current vacancies. If and when positions become
available for recruitment, our department will utilize job and diversity fairs in an attempt to
seek qualified candidates.
Outreach
Tools: Create and distribute informational brochures to CBOs
Attend and participate in local job and diversity fairs
Post job vacancies on websites that are geared toward the Asian population
Outreach
Tools: Create and distribute informational brochures to CBOs
Attend and participate in local job and diversity fairs
October 16, 2018 BOS Minutes 395
129
Post job vacancies on websites that are geared toward the Asian population
Message Distribution
Strategy
Element
Tasks
Create brochure
which explains the
Veterans Service
Department’s
outreach and
recruitment mission
and goals
Publication
Print Media
Mail brochures to CBOs that serve
the Asian, Hispanic, Black, and
Women populations so they can
share with their clientele.
Brochures will also be distributed
at job and diversity fairs; events
that we will attend.
Mail employment
recruitments for
current Veterans
Service Department
vacancies to CBOs Personal Contact
Partner with The Shiva Murugan
Temple, API Cultural Center, Bay
Area Women’s Center, and ASNC
Young Professionals Group in
order to encourage their
applications for employment
opportunities.
Register and post job
vacancies online to
reach a broad section
of Asian, Hispanic,
Black, and Women
populations Electronic
Register and post job vacancies on
websites that cater to Asian,
Hispanic, Black, and Women
populations such as:
http://www.asian-jobs.com/
http://www.blackcareernetwork.co
m
http://www.workplace-
dynamics.com
http://bayareawomenscouncil.org/
Contact: Nathan D. Johnson Equal Employment Opportunity Coordinator
Nathan@vs.cccounty.us
October 16, 2018 BOS Minutes 396
RECOMMENDATION(S):
APPROVE amendments to the List of Designated Positions of the Ambrose Recreation & Park District
(“District”).
FISCAL IMPACT:
None.
BACKGROUND:
The District has amended the List of Designated Positions of its Conflict of Interest Code and submitted the
revised List of Designated Positions, attached as Exhibit A, to the Board of Supervisors for approval
pursuant to Government Code sections 87306 and 87306.5.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of
Supervisors
By: Stephanie Mello, Deputy
cc: David Twa, Clerk of the Board of Supervisors, Cynthia Schwerin, Deputy County Counsel, Trina Hudson, Chair of the Board of Supervisors of the
Ambrose Recreation & Park
C. 48
To:Board of Supervisors
From:Sharon L. Anderson, County Counsel
Date:October 16, 2018
Contra
Costa
County
Subject:Conflict of Interest Code Amendment for the Ambrose Recreation & Park District
October 16, 2018 BOS Minutes 397
BACKGROUND: (CONT'D)
The changes include the addition and elimination 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 List of
Designated Positions is included as Exhibit B.
CONSEQUENCE OF NEGATIVE ACTION:
None.
ATTACHMENTS
Exhibit A - Ambrose Recreation & Park District COI Code
Exhibit B - Ambrose Recreation & Park District COI Code STRIKEOUT
October 16, 2018 BOS Minutes 398
October 16, 2018 BOS Minutes 399
October 16, 2018 BOS Minutes 400
October 16, 2018 BOS Minutes 401
October 16, 2018 BOS Minutes 402
RECOMMENDATION(S):
APPROVE the list of providers recommended by Contra Costa Health Plan's Peer Review and
Credentialing Committee on September 11, 2018, and by the Health Services Director, as required by the
State Departments of Health Care Services and Managed Health Care, and the Centers for Medicare and
Medicaid Services.
FISCAL IMPACT:
Not applicable.
BACKGROUND:
The National Committee on Quality Assurance (NCQA) requires that evidence of Board of Supervisors
approval must be contained within each CCHP provider’s credentials file. Approval of this list of providers
as recommended by the CCHP Peer Review and Credentialing Committee will enable the CCHP to comply
with this requirement.
CONSEQUENCE OF NEGATIVE ACTION:
If this action is not approved, CCHP's Providers would not be appropriately credentialed and not be in
compliance with the NCQA.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc: Marcy Wilhelm, Heather Wong
C. 49
To:Board of Supervisors
From:Anna Roth, Health Services Director
Date:October 16, 2018
Contra
Costa
County
Subject:Approve New and Recredentialing Providers in Contra Costa Health Plan’s Community Provider Network
October 16, 2018 BOS Minutes 403
ATTACHMENTS
List
October 16, 2018 BOS Minutes 404
Contra Costa Health Plan
Providers Approved by Peer Review and Credentialing Committee
September 11, 2018
CREDENTIALING PROVIDER S SEPTEMBER 2018
Name Specialty
Alonzo, Rosa, BA, RBT Qualified Autism Professional
Beck, Joel, MD Surgery – Transgender
Chen, Isabelle, BA, RBT Qualified Autism Professional
Cohen, Tamar, BCBA Qualified Autism Provider
Crawford, Megan, BCBA Qualified Autism Provider
Crowe, Rebecca, M.Ed., RBT Qualified Autism Provider
Crummett, Eva, BA, RBT Qualified Autism Professional
DeLa Cruz Aguilar, Edna, BS, RBT Qualified Autism Professional
Dietrick, James, DC Chiropractic Medicine
Dyer, Michael, BCBA Qualified Autism Provider
Kinnevey, Christina, MD Primary Care
Family Medicine
Lope, Aubry, BA, RBT Qualified Autism Professional
Lopez-Flores, Jenifer, BA, RBT Qualified Autism Professiona l
Macias, Marcela, BCBA Qualified Autism Provider
Monzon, Victoria, BA, RBT Qualified Autism Professiona l
Nieves, Lyzandra, BA, RBT Qualified Autism Professiona l
Ray, Teresa, BS Qualified Autism Professiona l
Rezapour, Alireza, MD Primary Care
Internal Medicine
Romero, Janelle, BA, RBT Qualified Autism Professiona l
Ryburn, Lacy, PsyD Qualified Autism Provider
Samsel, Megan, BA, RBT Qualified Autism Professiona l
Scott-Rosenbluth, Rachel, BCBA Qualified Autism Provider
Sobretodo, Gina, NP Primary Care
Family Medicine
Thuruthickara, Rosin, MA, RBT Qualified Autism Provider
Toma, Marissa, MD Surgery – Vascular
Uchiyama, Merry, MD Surgery – Thoracic
Velarde, Elizabeth, MA Qualified Autism Provider
Yuen, Kin, MD Sleep Medicine
CREDENTIALING ORGANIZATIONAL PROVIDER S
SEPTEMBER 2018
Provider Name
Provide the Following
Services
Location
A Plus Home Health Care, Inc. Home Health Pleasanton
October 16, 2018 BOS Minutes 405
Contra Costa Health Plan
Providers Approved by Peer Review and Credentialing Committee
September 11, 2018
Page 2 of 3
CREDENTIALING ORGANIZATIONAL PROVIDERS
SEPTEMBER 2018
Provider Name
Provide the Following
Services
Location
A Plus Hospice Hospice Pleasanton
Bayhealth, Inc. Home Health Campbell
Gateway Home Health Center Home Health Concord
Luxor Care, Inc., db a: Luxor Care
Home Health Services
Home Health Vallejo
Shadelands Endovascular, LLC Ambulatory Surgery
Center
Walnut Creek
Sojourn Hospice & Palliative Care -
East Bay, LLC
Hospice & Palliative
Care
Concord
South Springs Home Health, Inc. Home Health San Jose
Sunny Hill Services Substance Abuse San Anselmo
Synergy Health Services, Inc., dba:
Care Options
Home Health Hayward
RECREDENTIALING PROVIDER S SEPTEMBER 2018
Name Specialty
Benn, Andrew, MD Cardiovascular Disease
Berjis, Faraz, MD Gastroenterology
Castillo, Peter, MD Urogynecology & Pelvic Reconstructive
Surgery
Cheng, Huilan, MD Gastroenterology
Chiu, John, MD Cardiovascular Disease
Choi, Jiyon, MD Hematology/Oncology
Del Rio, Gerald, MD Primary Care Internal Medicine/
Pulmonary Disease
Dharan, Murali, MD Surgery – Cardiothoracic
Friedman, Yaron, MD OB/GYN
Guerrero, Susan, PsyD Mental Health Services
Harris, Jennifer L., BCBA -D, MFT Qualified Autism Provider
Hosseini, Mehra, MD Gastroenterology
Howard, Sage, BCBA Qualified Autis m Provider
Khan, Tanveer, MD Surgery – Cardiothoracic
October 16, 2018 BOS Minutes 406
Contra Costa Health Plan
Providers Approved by Peer Review and Credentialing Committee
September 11, 2018
Page 3 of 3
RECREDENTIALING PROVIDER S SEPTEMBER 2018
Name Specialty
Krupitskaya, Yelena, MD Hematology/Oncology
Lee, Jenny, MFT Qualified Autism Provider
Lee, Michael, MD Cardiovascular Disease
Nagesetty, Rajiv, MD Surgery – Vascular
Nathan, Mark, MD Cardiovascular Disease
Nguyen, Bach -Kim, OD Optometry
O'Hearn, Kathleen, NP Primary Care
Pediatrics
Rajapuram, Gurunath, MD Cardiovascular Disease
Rhodes, Gregory, MD Surgery – General Vascular
Silpa, Michael, MD Gastroenterology
Tanner, Catherine, NP Primary Care
Family Medicine
Veeragandham, Ramesh, MD Surgery – Cardiothoracic
West, Jeffrey, MD Cardiovascular Disease
White, Neal, MD Cardiovascular Disease
RECREDEN TIALING ORGANIZATIONAL PROVIDER
SEPTEMBER 2018
Provider Name
Provide the Following
Services
Location
Healthflex Home Health Services
dba: Healthflex Home Health
Services
Home Health Oakland
bopl-September 11, 2018
October 16, 2018 BOS Minutes 407
RECOMMENDATION(S):
APPROVE the revised Advisory Council on Equal Employment Opportunity (ACEEO) By-laws as
recommended by the ACEEO and the Hiring Outreach Oversight Committee.
FISCAL IMPACT:
None
BACKGROUND:
The updated bylaws were approved by the ACEEO at the April 2018 council meeting. The last time they
were updated was on March 1, 2006.
CONSEQUENCE OF NEGATIVE ACTION:
The Council will not be able to use technological advances when preparing and conducting its monthly
meetings.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Antoine Wilson,
925-335-1455
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
C. 50
To:Board of Supervisors
From:David Twa, County Administrator
Date:October 16, 2018
Contra
Costa
County
Subject:Advisory Council on Equal Employment Opportunity By-Laws Revisions
October 16, 2018 BOS Minutes 408
ATTACHMENTS
2018 Revised ACEEO
By-Laws
October 16, 2018 BOS Minutes 409
Adopted 12-04-92
Revised 02-19-04
Revised 01-28-05
Revised 03-01-06
Revised 03-14-2017
a:\bylaws.doc
Page 1
BY-LAWS
OF THE
ADVISORY COUNCIL ON
EQUAL EMPLOYMENT OPPORTUNITY
ARTICLE I
MEETINGS:
Section 1: Regular Meetings. Regular Meetings of the ADVISORY COUNCIL ON EQUAL
EMPLOYMENT OPPORTUNITY of Contra Costa County, hereinafter referred to as the "Advisory
Council," or "Council" shall be held monthly at regular times and places as set by the Advisory Council.
Section 2: Special Meetings. A special meeting may be called at any time by the Chairperson of the
Advisory Council or by a majority of the members of the Council, by providing notice to each member
of the Council and to the Board of Supervisors, and by posting the information on the ACEEO website.
The notice shall be posted at least 24 hours before the time of the meeting as specified in the notice.
The call and notice shall specify the time and place of the special meeting and the business to be
transacted. The Council shall consider no other business at the meeting.
Section 3: Public Meetings. All regular and special meetings of the Advisory Council shall be open to the
public in accordance with the Brown Act of the State of California and the Better Government Ordinance
of Contra Costa County.
Section 4: Quorum. A majority of the members currently appointed to the Advisory Council shall
constitute a quorum. A quorum is not necessary to conduct a meeting. The vote of a majority of a quorum
shall be necessary to act except as otherwise noted in these by-laws.
Section 5: Order of Business. The normal order of business for regular meetings shall be determined by
the Chairperson in consultation with members of the Advisory Council and with staff to the Advisory
Council at the time of preparation of the meeting agenda or prior to conducting the meeting. The order of
business of any meeting may be changed by the affirmative vote of a majority of the quorum of the
Advisory Council during the meeting. The order of business shall include the following items not
necessarily in the following order:
A. Call to order
B. Roll call
C. Public comment
D. Approval of minutes of previous meeting
E. Report by staff
F. Correspondence
G. Report by chairperson
October 16, 2018 BOS Minutes 410
Adopted 12-04-92
Revised 02-19-04
Revised 01-28-05
Revised 03-01-06
Revised 03-14-2017
a:\bylaws.doc
Page 2
H. Report(s) by Committee(s)
I. Old business
J. New business
K. Public Comment on Non-Agenda Items
L. Review Items for next Agenda
M. Adjournment
Section 6: Rules of Order. The rules contained in the latest edition of Robert's Rules of Order shall
govern the Advisory Council in all cases to which they are applicable and in which they are not
inconsistent with the laws governing the Advisory Council and these by-laws, provided that any rule may
be modified by majority vote of the Advisory Council.
Section 7: Tapes and Minutes. Each meeting shall be taped, and a written record that accurately reflects
the agenda and decisions made at the meeting (minutes) shall be maintained. Copies of the minutes shall
be distributed to all Advisory Council members at least one workweek prior to the next regularly scheduled
meeting. The meeting tapes can be reviewed upon request at any time with prior notice to staff. The tape
from each meeting will be erased one week after the subsequent meeting of the Advisory Council.
Section 8: Manner of voting. The vote of all questions coming before the Advisory Council shall be by
voice vote, except by request of a member or staff that a roll call vote be taken, in which case the yeas,
nays, and abstentions shall be entered into the minutes of such meeting. The Advisory Council shall
attempt to reach a consensus; if unable to reach consensus, then a roll call vote may be taken.
Additionally, if a consensus is not reached, then a majority vote is necessary to pass an action.
Section 9: Other Procedures. The Advisory Council may adopt, by majority vote, other rules, regulations
and procedures as may be required for the orderly conduct of business.
Section 10: Absence of Advisory Council Members. After a Council member has three unexcused absences
in a twelve-month period from regularly scheduled meetings, the Advisory Council may recommend
formally to the Board of Supervisors that the member be removed.
ARTICLE II
MEMBERSHIP:
Section l: The Board of Supervisors shall determine the number and composition of the members of the
Advisory Council.
Section 2: All members of the Advisory Council are appointed by and serve at the pleasure of the Board
of Supervisors.
Section 3: Matters of tenure of appointments and re-appointments are found in the enabling Orders of the
Board of Supervisors and County Affirmative Action Plan.
Section 4: All Advisory Council members serve without compensation.
ARTICLE III
October 16, 2018 BOS Minutes 411
Revised 03-01-06 a:\bylaws.doc
Revised 03-14-2017
OFFICERS:
Section 1: Designation of Officers. The Officers of the Advisory Council shall be the Chairperson and
the Vice-Chairperson.
Section 2: Nominations. Advisory Council members may propose candidates for Advisory Council office.
Section 3: Election of Officers. In November of each year, the officers of the Advisory Council shall be
elected by a majority vote of the total current membership of the Advisory Council and shall serve for a
term of one year commencing on and after the first meeting in November of each year. All officers shall
continue to serve until a successor has been elected. No officer shall serve for more than two consecutive
terms in one particular office unless this rule is set aside for that particular office by 2/3 vote of the current
members. Any officer may be removed from office at any time for just cause on the vote of 2/3 of the
current members.
Section 4: Vacancies of Officers. Any vacancy occurring among any of the officers by reason of death,
resignation from office or removal of any officer shall be filled by a vote of a majority of all current
members of the Advisory Council and the person filling the vacancy shall serve the remaining term of
office.
Section 5: Powers and duties of the Chairperson. The Chairperson shall call the meeting to order at the
appointed time; shall appoint all committees, subject to the approval of the Advisory Council; shall have
all the powers and duties of the presiding officer as described in Robert's Rules of Order; and shall
perform other duties as may from time to time be prescribed by the Advisory Council.
Section 6: Powers and Duties of the Vice-Chairperson. The Vice-Chairperson shall have all the powers
and perform all the duties of the Chairperson in the absence or inability of the Chairperson to act. The
Vice-Chairperson shall perform such other duties as may from time to time be prescribed by the Advisory
Council or by the Chairperson.
ARTICLE IV
COMMITTEES:
Section 1: Committees. The Chairperson from time to time may establish committees, composed of
members of the Council, define their powers and duties consistent with the Council's mandate as stated in
Part IV of the County's Affirmative Action Plan, and appoint the members thereof subject to the approval
of the Advisory Council.
Section 2: Each subcommittee shall have a chairperson. The Chairperson of the Advisory Council shall
be an ex-officio member of all committees of the Advisory Council and shall be notified of all meetings.
A list of members and participants of each committee shall be kept and a copy given to the Advisory
Council staff person. Committee meeting notices shall be mailed, e-mailed, telephoned, and/or personally
given, approximately one workweek in advance of the meeting date to all members of the committee
involved, or by unanimous agreement with less notice. Meeting locations shall be conducive to
effective functioning of the committee (e.g. size, accessibility, minimum of distractions, etc.)
Adopted 12-04-92
Page 3
October 16, 2018 BOS Minutes 412
Revised 03-01-06 a:\bylaws.doc
Revised 03-14-2017
At the first meeting of any new committee and at other times as warranted by changing membership or
other conditions, the purpose and relevant policies of the Advisory Council and the particular committee
shall be reviewed and explained by the Advisory Council Chairperson and/or the committee Chairperson.
Section 3: Meetings. Committees shall meet as warranted.
Section 4: Assistance. Committees may call upon any member of the staff of the Advisory Council for
technical or clerical assistance.
Section 5: When the committee Chairperson changes, the outgoing committee Chairperson shall submit
to the new committee Chairperson a list of all pending projects of the committee in order to insure
continuity and completion of the committee activities and goals.
ARTICLE V
PUBLIC STATEMENTS :
Section 1: Only the Chairperson or his/her designee may speak or make statements officially on behalf of
the Advisory Council. The designee shall be a member of the Advisory Council or staff.
ARTICLE VI
AMENDMENTS:
Section 1: As authorized by the Board of Supervisors, the Advisory Council may independently adopt
bylaws that address quorum requirements, attendance requirements for continuing membership, the
election of officers, and the establishment of subcommittees comprising current members of the advisory
body. Advisory Council bylaws addressing other topics must be approved by the Board of Supervisors.
Subject to the requirements for Board of Supervisors approval, these bylaws may be adopted, amended or
repealed by the affirmative vote of 2/3 of the currently appointed members of the Advisory Council, at
any regular or special meeting.
Section 2: Written notice of any proposed changes must be publicly posted and given to members of the
Advisory Council at least four days (96 hours) prior to the meeting at which the vote will be called.
Adopted 12-04-92
Revised 03-14-01
Page 4
October 16, 2018 BOS Minutes 413
RECOMMENDATION(S):
ACCEPT the Contra Costa County Public Law Library Board of Trustees Fiscal Year 2017/18 Report.
FISCAL IMPACT:
No fiscal impact
BACKGROUND:
Per Resolution No. 2011/497, each Advisory Body shall submit annually to the Board of Supervisors a
report on its activities, accomplishments, membership attendance, required training/certification and
proposed work plan or objectives for the following year.
CONSEQUENCE OF NEGATIVE ACTION:
If the report is not accepted, the Board will not have an official record of the Public Law Library Board of
Trustees activities in the past year.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Jami Napier, (925)
335-1908
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
C. 51
To:Board of Supervisors
From:David Twa, County Administrator
Date:October 16, 2018
Contra
Costa
County
Subject:Contra Costa County Public Law Library Board of Trustees Fiscal Year 2017/18 Report
October 16, 2018 BOS Minutes 414
ATTACHMENTS
FY 2017/18 Public Law Library
Report
October 16, 2018 BOS Minutes 415
October 16, 2018 BOS Minutes 416
October 16, 2018 BOS Minutes 417
October 16, 2018 BOS Minutes 418
October 16, 2018 BOS Minutes 419
RECOMMENDATION(S):
ADOPT Resolution No. 2018/531 approving the Side Letter between Contra Costa County and the
California Nurses Association (CNA) modifying the Preamble and Section 64 Duration of Agreement of
the Memorandum of Understanding to extend the contract from September 30, 2018 through October 31,
2018.
FISCAL IMPACT:
No fiscal impact.
BACKGROUND:
This Side Letter extends the current memorandum of understanding from September 30, 2018 through
October 31, 2018, to allow both parties to work together to negotiate an agreement. Both the Preamble and
Section 64 - Duration of Agreement are modified. The effect of this Side Letter is that all other terms and
conditions of the MOU, specifically including Section 60 and 62, are extended accordingly for the new
term of the MOU between the County and CNA (August 1, 2014 – October 31, 2018).
CONSEQUENCE OF NEGATIVE ACTION:
Members will continue working under an expired contract.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II Supervisor
Diane Burgis, District III Supervisor
Karen Mitchoff, District IV Supervisor
Federal D. Glover, District V Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc: Robert Campbell, County Auditor-Controller, Dianne Dinsmore, Human Resources Director
C. 52
To:Board of Supervisors
From:David Twa, County Administrator
Date:October 16, 2018
Contra
Costa
County
Subject:Resolution No. 2018/531 - California Nurses Association Side Letter Extending Duration of Agreement
October 16, 2018 BOS Minutes 420
AGENDA ATTACHMENTS
Resolution No. 2018/531
CNA Side Letter dated 10/9/18
MINUTES ATTACHMENTS
Signed Resolution No.
2018/531
October 16, 2018 BOS Minutes 421
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/531
In the Matter of: The Side Letter Agreement between the County of Contra Costa and the California Nurses Association,
extending the Duration of Agreement
The Contra Costa County Board of Supervisors acting solely in its capacity as the governing board of the County of Contra Costa
RESOLVES THAT:
Effective October 1, 2018, the attached Side Letter of Agreement dated October 9, 2018, between the County of Contra Costa
and the California Nurses Association, be ADOPTED.
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc: Robert Campbell, County Auditor-Controller, Dianne Dinsmore, Human Resources Director
October 16, 2018 BOS Minutes 422
October 16, 2018 BOS Minutes 423
October 16, 2018 BOS Minutes 424
October 16, 2018BOS Minutes425
RECOMMENDATION(S):
ADOPT Resolution No. 2018/489 approving documents to facilitate a redemption of bonds and sale of
Pinecrest Apartments, and to authorize the sale of Multifamily Housing Revenue Bonds in a principal
amount not to exceed $10,816,192 to finance the acquisition and rehabilitation of two multifamily rental
housing facilities (Pinecrest and Terrace Glen Apartments) for the Antioch Scattered Site Renovation
project (the "Development").
1. FIND and DECLARE that the recitals contained in the proposed Resolution are true and correct.
2. APPROVE the sale of Pinecrest Apartments by Pinecrest Affordable Housing L.P. (the "Current
Owner").
3. APPROVE the form of, and authorize the County to execute, the Termination Agreement between the
County, and Wells Fargo Bank, National Association (the "2000 Trustee"), and the Current Owner to
terminate the current Regulatory Agreement recorded on Pinecrest Apartments.
4. AUTHORIZE the issuance of County of Contra Costa Multifamily Housing Revenue Bonds (Antioch
Scattered Site Renovation), Series 2018A in an aggregate principal amount not to exceed $10,816,192.
5. APPROVE the form of, and authorize the County to execute, the Indenture of Trust between the County
and Wells Fargo Bank, National Association (the "Bank").
6. APPROVE the form of, and authorize the County to execute, the Loan Agreement among the Bank, the
County and Antioch Recap L.P. (the "Borrower").
7. APPROVE the form of, and authorize the County to execute, two Regulatory Agreements and
Declaration of Restrictive Covenants between the County and the Borrower, one for each site.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I Supervisor
Candace Andersen, District II
Supervisor
Diane Burgis, District III
Supervisor
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
C. 53
To:Board of Supervisors
From:John Kopchik, Director, Conservation & Development Department
Date:October 16, 2018
Contra
Costa
County
Subject:Multifamily Mortgage Revenue Bonds - Pinecrest Apartments Redemption and Sale of Bonds for Antioch Renovation
(Pinecrest and Terrace Glen), Antioch
October 16, 2018 BOS Minutes 426
October 16, 2018 BOS Minutes 427
RECOMMENDATION(S): (CONT'D)
8. 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.
9. APPOINT Quint & Thimmig, LLP as bond counsel for the transaction.
10. AUTHORIZE and DIRECT the Designated Officers of the County 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. Authorized officers include the Chair of the Board of
Supervisors, the Vice-Chair of the Board of Supervisors, County Administrator, the County Director of
Conservation and Development, the County Assistant Deputy Director of Conservation and
Development, the County’s Community Development Bond Program Manager, County Counsel, and
other officers of the County.
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 are accommodated 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 Resolution No. 2018/489 by the Board, as the legislative
body of the County, approving documents to facilitate a redemption of bonds and the sale of Pinecrest
Apartments in Antioch in association with a bond refinancing. The Resolution also authorizes the
issuance of Multifamily Housing Revenue Bonds, the proceeds of which will be used to finance the
acquisition and rehabilitation of two apartment complexes together known as Antioch Scattered Sites
Renovation and consisting of Pinecrest Apartments, a 24 unit residential housing development located at
1945 and 1949 Cavallo Road and Terrace Glen Apartments, a 32 unit residential development located at
104-106 West 20th Street and 35-107 West 20th Street, Antioch.
In 2000, the County issued bonds for the acquisition and rehabilitation of Pinecrest Apartments. In order
to move forward with the proposed Antioch Scattered Sites Renovation project, the existing bonds must
be redeemed, and the regulatory agreement terminated.
The ownership entity for the development is Antioch Recap, L.P., a California limited partnership with
RCD GP III, LLC serving as general partner and Red Stone Equity Partners LLC serving as the tax
credit investor limited partner. RCD GP III, LLC is an affiliate of Resources for Community
Development, a local non-profit housing developer that has developed 445 units of housing in Contra
Costa County.
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 6, 2018 with no comments received from the public. The Board adopted Resolution No.
2018/106 on March 20, 2018 to authorize proceeding with the issuance of the Bonds pursuant to Section
147(f) of the Internal Revenue Code. On June 5, 2018, the Board of Supervisors adopted Resolution No.
2018/189 expressing the Board's intent to issue multifamily 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.
October 16, 2018 BOS Minutes 428
On May 16, 2018, the California Debt Limit Allocation Committee (CDLAC) awarded the County
authority to issue the Bonds in a maximum principal amount of $9,260,000. On September 19, 2018,
CDLAC awarded an additional $1,556,196 for a total bond authority of $10,816,192. That authority will
be used to issue and sell the Bonds directly to Wells Fargo Bank, National Association. In addition to the
proceeds of the Bonds, the Development is proposed to utilize $1.3 million in a new allocation of
HOME Investment Partnerships Act funds (a separate item on the October 16, 2018 Board agenda
addresses the HOME funds). The transaction is expected to close on or about November 1, 2018.
Pursuant to Section 5852.1 of the California Government Code the County is sharing the good faith
estimate of the costs of the bonds provided by Borrower's counsel. The disclosures are included in
Attachment A.
CONSEQUENCE OF NEGATIVE ACTION:
Negative action would prevent the County from issuing the Multifamily Housing Revenue Bonds in
order to provide a loan to Antioch Recap, L.P. to finance the acquisition and rehabilitation of Pinecrest
Apartments and Terrace Glen Apartments.
CHILDREN'S IMPACT STATEMENT:
The two apartment complexes making up the Antioch Renovation development provide 56 units of
affordable rental housing appropriate for families. This supports outcome #3: Families are Economically
Self Sufficient.
AGENDA ATTACHMENTS
Resolution No. 2018/489
Termination Agreement
Indenture
Loan Agreement
Pinecrest Regulatory Agreement
Terrace Glen Regulatory Agreement
Assignment of Deed of Trust
Attachment A
MINUTES ATTACHMENTS
Signed Resolution No. 2018/489
October 16, 2018 BOS Minutes 429
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
and for Special Districts, Agencies and Authorities Governed by the Board
Adopted this Resolution on 10/16/2018 by the following vote:
AYE:5
John Gioia
Candace Andersen
Diane Burgis
Karen Mitchoff
Federal D. Glover
NO:
ABSENT:
ABSTAIN:
RECUSE:
Resolution No. 2018/489
RESOLUTION AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS IN A PRINCIPAL
AMOUNT NOT TO EXCEED $10,816,192 TO FINANCE THE ACQUISITION AND REHABILITATION OF
MULTIFAMILY RENTAL HOUSING FACILITIES FOR ANTIOCH RECAP, 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, in accordance with the Act, in 2000 the County issued $1,470,000 principal amount of its Multifamily Housing
Revenue Refunding Bonds (Pinecrest Apartments), 2000 Series B (the “2000 Bonds”) pursuant to an Indenture, dated as of
November 1, 2000 (the “2000 Indenture”), between the County and Wells Fargo Bank, National Association, as trustee (the
“2000 Trustee”), and loaned the proceeds of the 2000 Bonds to Pinecrest Affordable Housing, L.P., a California limited
partnership (the “Current Owner”), the proceeds of which loan were used by the Current Owner to finance a 24 unit residential
rental housing facility known as Pinecrest Apartments, located at 1945 and 1949 Cavallo Road in the City of Antioch; and
WHEREAS, the Current Owner is selling Pinecrest Apartments to Antioch Recap, L.P., a California limited partnership (the
“Borrower”); and
WHEREAS, 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 by the Borrower of Pinecrest Apartments from the Current
Owner, as well as finance the rehabilitation of the Pinecrest Apartments and the acquisition and rehabilitation by the Borrower of
a 32 unit residential rental housing facility known as Terrace Glen Apartments, located at 104-106 West 20th Street and 35-107
West 20th Street in Antioch (Pinecrest Apartments and Terrace Glen Apartments being collectively referred to below as the
“Project”); and
WHEREAS, on March 6, 2018, the Assistant Deputy Director of the Department of Conservation and Development 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 Project, 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 20, 2018, the Board of Supervisors of the County adopted Resolution No. 2018/106 authorizing the
issuance of the Bonds to finance the Project in satisfaction of public approval requirements of the Code; and
WHEREAS, the California Debt Limit Allocation Committee (“CDLAC”) adopted its Resolution No. 18-033 on May 16, 2018
allocating $9,260,000 of the State of California ceiling on private activity bonds for 2018 to the County for the purpose of
financing the Project, and on September 19, 2018, CDLAC adopted its Resolution No. 18-090 allocating an additional
$1,556,192 of the State of California ceiling on private activity bonds for 2018 to the County for the purpose of financing the
Project; and
October 16, 2018 BOS Minutes 430
WHEREAS, in order to assist in the financing of the Project, 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 termination of an agreement related to the 2000
Bonds and 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, upon receipt by the County of the Second Allocation 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 will exist, will have happened and will 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. The Board of Supervisors hereby approves the sale of Pinecrest Apartments by the Current Owner to the Borrower.
Section 3. The Termination Agreement, among the County, the 2000 Trustee and the Current Owner terminating a regulatory
agreement and declaration of restrictive covenants (the “2000 Regulatory Agreement”) recorded against Pinecrest Apartments in
connection with the 2000 Bonds (the “Termination Agreement”), 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 Termination Agreement in said form,
together with such additions thereto or changes therein as are recommended or approved by the Designated Officer executing the
Termination Agreement upon consultation with Bond Counsel to the County (including such additions or changes as are
necessary or advisable in accordance with Section 11 hereof), the approval of such additions or changes to be conclusively
evidenced by the execution and delivery of the Termination Agreement by the County.
Section 4. Pursuant to the Act and the Indenture, the Bonds designated as “County of Contra Costa Multifamily Housing Revenue
Bonds (Antioch Scattered Site Renovation), Series 2018A” in an aggregate principal amount of not to exceed $10,816,192, 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 5. 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 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 11 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 4
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 6. 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 11 hereof), the approval of such changes to be conclusively
evidenced by the execution and delivery of the Loan Agreement by the County.
Section 7. The two regulatory agreements and declarations of restrictive covenants relating to the Project, each between the
County and the Borrower (collectively, the “Regulatory Agreements”), in the respective forms on file with the Clerk of the
Board, are hereby approved. Any one of the Designated Officers is hereby authorized, acting alone, for and in the name and on
October 16, 2018 BOS Minutes 431
behalf of the County, to execute and deliver the Regulatory Agreements in said forms, together with such additions thereto or
changes therein as are recommended or approved by the Designated Officer executing the Regulatory Agreements upon
consultation with Bond Counsel to the County (including such additions or changes as are necessary or advisable in accordance
with Section 11 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of
the Regulatory Agreements by the County.
Section 8. 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 11 hereof), the approval of such additions or changes to be conclusively evidenced by the execution and delivery of
the Assignment by the County.
Section 9. 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 10. 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 11. 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 facilitate the sale of Pinecrest Apartments to the Borrower, the redemption of the 2000 Bonds and the termination of
the 2000 Regulatory Agreement, as well as 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 Termination Agreement, the
Indenture, the Loan Agreement, the Regulatory Agreements or the Assignment, or otherwise necessary to redeem the 2000
Bonds, to terminate the 2000 Regulatory Agreement, to issue the Bonds and to consummate the transactions contemplated by the
documents approved by this Resolution.
Section 12. 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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: Stephanie Mello, Deputy
cc:
October 16, 2018 BOS Minutes 432
October 16, 2018 BOS Minutes 433
October 16, 2018 BOS Minutes 434
October 16, 2018 BOS Minutes 435
Quint & Thimmig LLP 8/14/18
9/11/18
9/26/18
03007.43:J15238
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Paul J. Thimmig
Quint & Thimmig LLP
900 Larkspur Landing Circle, Suite 270
Larkspur, California 94920-1726
TERMINATION AGREEMENT
by and among the
COUNTY OF CONTRA COSTA,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee,
and
PINECREST AFFORDABLE HOUSING, L.P.
dated as of November 1, 2018
relating to:
Regulatory Agreement and Declaration of Restrictive Covenants,
dated as of November 1, 2000, among the
County of Contra Costa,
Pinecrest Affordable Housing, L.P. and
Wells Fargo Bank, National Association
October 16, 2018 BOS Minutes 436
-1-
TERMINATION AGREEMENT
This TERMINATION AGREEMENT, dated as of November 1, 2018 (the “Agreement”),
is by and among the COUNTY OF CONTRA COSTA, CALIFORNIA (the “County”), WELLS
FARGO BANK, NATIONAL ASSOCIATION, as trustee (the “Trustee”), and PINECREST
AFFORDABLE HOUSING, L.P., a California limited partnership (the “Borrower”).
RECITALS:
WHEREAS, pursuant to an Indenture, dated as of November 1, 2000, between the
County and the Trustee, the County issued its County of Contra Costa Multifamily Housing
Revenue Bonds (Pinecrest Apartments), 2000 Series B (the “Bonds”); and
WHEREAS, the proceeds of the Bonds were loaned by the County to the Borrower (the
“Loan”) pursuant to a Loan Agreement, dated as of November 1, 2000 (the “Loan Agreement”),
among the County, the Trustee and the Borrower, and the Borrower used proceeds of the Loan
to finance a 24 unit multifamily rental housing facility known as Pinecrest Apartments located
at 1945 and 1949 Cavallo Road in the City of Antioch, California (the “Project”); and
WHEREAS, in connection with the issuance of the Bonds, the County, the Trustee and
the Borrower entered into a Regulatory Agreement and Declaration of Restrictive Covenants,
dated as of November 1, 2000 (the “Regulatory Agreement”) and recorded on November 30,
2000 in the official records of the County of Contra Costa, State of California, as Instrument No.
DOC-2000-0268411-00, which Regulatory Agreement sets forth certain terms and conditions
relating to the operation of the Project;
WHEREAS, the Borrower is selling the Project to Antioch Recap, L.P., a California
limited partnership (the “New Owner”), and is using a portion of the proceeds of the sale of the
Project to fully prepay the Loan, which prepayment will result in the redemption of the Bonds
in whole; and
WHEREAS, in order to obtain the funds to acquire the Project from the Borrower, the
New Owner is obtaining a loan (the “2018 Borrower Loan”) from the County which is issuing
its County of Contra Costa Multifamily Housing Revenue Bonds (Antioch Scattered Site
Renovation), Series 2018A (the “2018 Bonds”) and using the proceeds of the 2018 Bonds to make
the 2018 Borrower Loan; and
WHEREAS, in connection with the issuance of the 2018 Bonds and the 2018 Borrower
Loan, the County and the New Owner are entering into a Regulatory Agreement and
Declaration of Restrictive Covenants (the “New Regulatory Agreement”), which New
Regulatory Agreement sets forth terms and conditions relating to the operation of the Project,
including provisions substantially the same as those in Sections 2, 3 and 4 of the Regulatory
Agreement, and is for a term at least as long as the remaining term of the Regulatory
Agreement; and
WHEREAS, the County and the New Owner have agreed to make the owners of the
Bonds beneficiaries of the New Regulatory Agreement, so that the New Regulatory Agreement
can supplant the Regulatory Agreement upon its execution and the redemption of the Bonds;
and
WHEREAS, the County and the Trustee have received the opinion of Bond Counsel (as
defined in the Indenture) to the effect that the execution and delivery of this Agreement and the
October 16, 2018 BOS Minutes 437
-2-
New Regulatory Agreement, and the termination of the Regulatory Agreement as provided
herein, will not adversely affect the exclusion of the interest on the Bonds from the gross
incomes of the owners of the Bonds; and
WHEREAS, the County and the Borrower now desire to provide for the termination of
the Regulatory Agreement as provided herein, and have requested that the Trustee execute this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing and for other consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as
follows:
Section 1. Termination.
(a) The County, the Trustee and the Borrower hereby agree that the Regulatory
Agreement shall cease and terminate.
(b) In accordance with the foregoing, the Regulatory Agreement recorded November 30,
2000, as Instrument No. DOC-2000-0268411-00 in the Official Records of Contra Costa County,
State of California, is hereby terminated and is of no further force and effect.
(c) From and after the date hereof, none of the County, the Trustee or the Borrower shall
have any further rights or obligations under the Regulatory Agreement.
Section 2. Execution in Counterparts. This Termination Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall constitute but one
and the same instrument.
October 16, 2018 BOS Minutes 438
[Signature page to Termination Agreement]
S-1
IN WITNESS WHEREOF, the parties hereto have duly executed this Termination
Agreement as of the day and year first written above.
COUNTY OF CONTRA COSTA, CALIFORNIA
By:
Its:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
By:
Its:
PINECREST AFFORDABLE HOUSING, L.P., a
California Limited Partnership
By: Resources for Community Development, a
California nonprofit public benefit
corporation, its General Partner
By:
Its:
03007.43:J15238
October 16, 2018 BOS Minutes 439
[Notary page to Termination Agreement]
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 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.
October 16, 2018 BOS Minutes 440
[Notary page to Termination Agreement]
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 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.
October 16, 2018 BOS Minutes 441
[Notary page to Termination Agreement]
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 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.
October 16, 2018 BOS Minutes 442
Exhibit A
EXHIBIT A
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANTIOCH,
COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, AND IS DESCRIBED AS
FOLLOWS:
A PORTION OF THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 19 TOWNSHIP 2
NORTH, RANGE 2 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED
FROM TIMOTHY F. BROWN, SR. TO TIMOTHY F. BROWN. JR., RECORDED OCTOBER 2, 1956,
IN BOOK 2854 OF OFFICIAL RECORDS, PAGE 527, DISTANT THEREON EAST, 263 FEET FROM
THE NORTHWEST CORNER THEREOF, SAID POINT OF BEGINNING ALSO BEING THE
NORTHWEST CORNER OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM
TIMOTHY BROWN, SR., A WIDOWER, TO TIMOTHY BROWN, JR., RECORDED APRIL 14, 1955
IN BOOK 2515, OFFICIAL RECORDS, PAGE 137; THENCE FROM SAID POINT OF BEGINNING
ALONG THE EXTERIOR LINES OF SAID BROWN PARCEL (2854 OR 527) AS FOLLOWS; WEST.
263 FEET; SOUTH 110 FEET AND EAST 263 FEET TO THE SOUTHWEST CORNER OF SAID
BROWN PARCEL (2515 OR 137); THENCE NORTH ALONG THE WEST LINE OF SAID PARCEL
(2515 OR 137); 110 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM:
1. THE INTEREST OF CONTRA COSTA COUNTY IN THE WEST 20 FEET THEREOF, AS
DESCRIBED IN THE DEED RECORDED FEBRUARY 15, 1938, IN BOOK 453 OF OFFICIAL
RECORDS, PAGE 382.
2. THE INTEREST OF THE CITY OF ANTIOCH IN THE EAST 10 FEET OF THE WEST 30 FEET
THEREOF, "FOR THE PURPOSE OF A PUBLIC STREET OR HIGHWAY” AS DESCRIBED IN THE
DEED RECORDED OCTOBER 5, 1951, IN BOOK 1832 OF OFFICIAL RECORDS, PAGE 262.
Assessors Parcel No.: 068-061-024
October 16, 2018 BOS Minutes 443
Quint & Thimmig LLP 7/10/18
8/21/18
10/2/18
03007.43:J15228
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 November 1, 2018
relating to:
$____________
County of Contra Costa
Multifamily Housing Revenue Bonds
(Antioch Scattered Site Renovation), Series 2018A
October 16, 2018 BOS Minutes 444
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND GENERAL PROVISIONS
Section 1.01. Definitions. ........................................................................................................................................................ 2
Section 1.02. Rules of Construction. ..................................................................................................................................... 8
ARTICLE II
THE BONDS
Section 2.01. Authorization. ................................................................................................................................................... 8
Section 2.02. Terms of Bonds. ................................................................................................................................................ 8
Section 2.03. Payment of Bonds. .......................................................................................................................................... 10
Section 2.04. Execution of Bonds. ........................................................................................................................................ 10
Section 2.05. Transfer of Bonds. .......................................................................................................................................... 10
Section 2.06. Bond Register. ................................................................................................................................................. 12
Section 2.07. Replacement of Bonds ................................................................................................................................... 12
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.01. Authentication and Delivery of the Bonds. ................................................................................................ 12
Section 3.02. Application of Proceeds of Bonds. ............................................................................................................... 13
Section 3.03. Program Fund. ................................................................................................................................................ 13
ARTICLE IV
REDEMPTION OF BONDS
Section 4.01. Circumstances of Redemption. .................................................................................................................... 14
Section 4.02. No Notice of Redemption ............................................................................................................................. 14
Section 4.03. Effect of Redemption. .................................................................................................................................... 14
ARTICLE V
REVENUES
Section 5.01. Power to Issue Bonds; Pledge of Revenues. ............................................................................................... 15
Section 5.02. Bond Fund. ...................................................................................................................................................... 16
Section 5.03. Investment of Moneys ................................................................................................................................... 17
Section 5.04. Enforcement of Obligations .......................................................................................................................... 18
ARTICLE VI
COVENANTS OF THE ISSUER
Section 6.01. Payment of Principal and Interest. .............................................................................................................. 18
Section 6.02. Paying Agents. ................................................................................................................................................ 18
Section 6.03. Preservation of Revenues; Amendment of Documents ............................................................................ 18
Section 6.04. Compliance with Indenture. ......................................................................................................................... 19
Section 6.05. Further Assurances. ....................................................................................................................................... 19
Section 6.06. No Arbitrage. .................................................................................................................................................. 19
Section 6.07. Limitation of Expenditure of Proceeds ....................................................................................................... 19
Section 6.08. Rebate of Excess Investment Earnings to United States. .......................................................................... 19
Section 6.09. Limitation on Issuance Costs. ....................................................................................................................... 20
Section 6.10. Federal Guarantee Prohibition. .................................................................................................................... 20
Section 6.11. Prohibited Facilities. ....................................................................................................................................... 20
Section 6.12. Use Covenant .................................................................................................................................................. 20
Section 6.13. Immunities and Limitations of Responsibility of Issuer .......................................................................... 20
Section 6.14. Additional Representations by the Issuer .................................................................................................. 21
ARTICLE VII
DEFAULT
Section 7.01. Events of Default; Acceleration; Waiver of Default .................................................................................. 22
Section 7.02. Institution of Legal Proceedings by Bondowner Representative. ........................................................... 23
Section 7.03. Application of Moneys Collected by Bondowner Representative. ......................................................... 23
Section 7.04. Effect of Delay or Omission to Pursue Remedy. ........................................................................................ 24
Section 7.05. Remedies Cumulative. ................................................................................................................................... 24
Section 7.06. Covenant to Pay Bonds in Event of Default. .............................................................................................. 24
Section 7.07. Bondowner Representative Appointed Agent for Bondholders. ............................................................ 24
October 16, 2018 BOS Minutes 445
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Section 7.08. Power of Bondowner Representative to Control Proceedings. ............................................................... 24
Section 7.09. Limitation on Bondholders’ Right to Sue. .................................................................................................. 25
Section 7.10. Limitation of Liability to Revenues. ............................................................................................................ 25
ARTICLE VIII
THE BONDOWNER REPRESENTATIVE AND AGENTS
Section 8.01. Duties, Immunities and Liabilities of Bondowner Representative. ........................................................ 26
Section 8.02. Right of Bondowner Representative to Rely Upon Documents, Etc. ..................................................... 28
Section 8.03. Bondowner Representative Not Responsible for Recitals. ....................................................................... 29
Section 8.04. Intervention by Bondowner Representative. ............................................................................................. 29
Section 8.05. Moneys Received by Bondowner Representative. .................................................................................... 29
Section 8.06. Compensation and Indemnification of Bondowner Representative and Agents. ................................ 29
Section 8.07. Qualifications of Bondowner Representative. ........................................................................................... 30
Section 8.08. Merger or Consolidation of Bondowner Representative. ........................................................................ 30
Section 8.09. Dealing in Bonds. ........................................................................................................................................... 30
Section 8.10. Indemnification of Issuer by Bondowner Representative ........................................................................ 31
Section 8.11. Bondowner Representative Not Agent of Issuer ....................................................................................... 31
ARTICLE IX
MODIFICATION OF INDENTURE
Section 9.01. Modification of Indenture ............................................................................................................................. 31
Section 9.02. Effect of Supplemental Indenture. ............................................................................................................... 32
Section 9.03. Opinion of Counsel as to Supplemental Indenture. .................................................................................. 32
Section 9.04. Notation of Modification on Bonds; Preparation of New Bonds. ........................................................... 32
ARTICLE X
DISCHARGE OF INDENTURE
Section 10.01. Discharge of Indenture. ................................................................................................................................. 32
ARTICLE XI
MISCELLANEOUS
Section 11.01. Successors of Issuer. ....................................................................................................................................... 33
Section 11.02. Limitation of Rights to Parties and Bondholders. ..................................................................................... 33
Section 11.03. Waiver of Notice. ............................................................................................................................................ 33
Section 11.04. Destruction of Bonds. .................................................................................................................................... 33
Section 11.05. Separability of Invalid Provisions. ............................................................................................................... 33
Section 11.06. Notices. ............................................................................................................................................................ 33
Section 11.07. Authorized Representatives. ........................................................................................................................ 34
Section 11.08. Evidence of Rights of Bondholders. ............................................................................................................ 34
Section 11.09. Waiver of Personal Liability. ........................................................................................................................ 35
Section 11.10. Holidays. .......................................................................................................................................................... 36
Section 11.11. Execution in Several Counterparts. ............................................................................................................. 36
Section 11.12. Governing Law. .............................................................................................................................................. 36
Section 11.13. Successors. ....................................................................................................................................................... 36
EXHIBIT A FORM OF BOND
EXHIBIT B FORM OF INVESTOR’S LETTER
October 16, 2018 BOS Minutes 446
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INDENTURE OF TRUST
This Indenture of Trust, dated as of November 1, 2018 (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 (Antioch Scattered Site
Renovation), Series 2018A (the “Bonds”); and
WHEREAS, the proceeds of the Bonds will be used to fund a loan to Antioch Recap, L.P.,
a California limited partnership (the “Borrower”) pursuant to a Loan Agreement, dated as of
November 1, 2018, among the Issuer, the Bondowner Representative and the Borrower (the “Loan
Agreement”), to provide financing for the acquisition and rehabilitation of 56 units of multifamily
rental housing (the “Project”), with 24 units located at 1945 Cavallo Road currently known as
Pinecrest Apartments, and 32 units located at 35, 45, 101, 103, 104, 105, 106 and 107 West 20th
Street currently known as Terrace Glen Apartments, all in the City of Antioch, 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.
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
October 16, 2018 BOS Minutes 447
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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 Agreement 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 Agreements.
The term “Agreement” or “Loan Agreement” shall mean the Loan Agreement, dated as
of November 1, 2018, 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 accordance
with its terms.
The term “Approved Institutional Buyer” means (a) an affiliate of Wells Fargo Bank,
National Association, (b) a trust or custodial arrangement established by Wells Fargo Bank,
National Association or one of 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 $5,000,000,000, or (d) a government-sponsored enterprise.
The term “Assignment of Deed of Trust” means the Assignment of Deed of Trust and
Loan Documents, dated as of November 1, 2018, by the Issuer to the Bondowner Representative.
The term “Authorized Amount” shall mean _______________ Million Dollars
($____________), 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 Executive Director (or other designated officer) of the sole
member and manager of the 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 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
October 16, 2018 BOS Minutes 448
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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 “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; (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 (Antioch Scattered Site Renovation), Series 2018A, issued and outstanding hereunder.
The term “Borrower” shall mean Antioch Recap, 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 “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 “City” means the City of Antioch, California.
The term “Closing Date” means November 1, 2018, 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 “Debt Service” means the scheduled amount of interest and amortization of
principal payable on the Bonds during the period of computation, excluding amounts scheduled
October 16, 2018 BOS Minutes 449
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during such period which relate to principal which has been retired before the beginning of such
period.
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 Promissory 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 December 3, 2018 until the Conversion Date, and thereafter the first day of each
month.
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:
October 16, 2018 BOS Minutes 450
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(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 RSEP Holding, LLC, 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.
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 acquisition and rehabilitation 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 “Note” means the promissory note evidencing the Loan, in the form required
by the Loan Agreement.
October 16, 2018 BOS Minutes 451
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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.
The term “Program Fund” shall mean the fund established pursuant to Section 3.03
hereof.
The term “Project” means, collectively, the 56 units of rental housing to be acquired and
rehabilitated by the Borrower with the proceeds of the Loan, with 24 units located at 1945 Cavallo
Road currently known as Pinecrest Apartments, and 32 units located at 35, 45, 101, 103, 104, 105,
106 and 107 West 20th Street currently known as Terrace Glen Apartments, all located in the City,
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
Agreements.
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.
October 16, 2018 BOS Minutes 452
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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 Agreements” shall mean, collectively, (i) that certain Regulatory
Agreement and Declaration of Restrictive Covenants, dated as of November 1, 2018, by and
between the Issuer and the Borrower pertaining to the 24 rental housing units located at 1945
Cavallo Road in the City, as in effect on the Closing Date and as it may thereafter be amended or
modified in accordance with its terms, and (ii) that certain Regulatory Agreement and Declaration
of Restrictive Covenants, dated as of November 1, 2018, by and between the Issuer and the
Borrower, pertaining to the 32 rental housing units located at 35, 45, 101, 103, 104, 105, 106 and
107 West 20th Street in the City, as in effect on the Closing Date and as it may thereafter be
amended or modified 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(h)(i),
3.3(h)(iii), 3.3(i), 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, either of the two Regulatory
Agreements and this Indenture, its rights to indemnification by the Borrower under the Loan
Agreement and each of the two Regulatory Agreements, and its right to amend this Indenture,
the Loan Agreement and either of the two Regulatory Agreements 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
3.3(a), (b), (c), (d), (e) and (g), 3.5, and 3.8 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(f), (h) and (i), 3.4, 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 7, 9 or 20 of
each of the two Regulatory Agreements.
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.
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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, acquisition and rehabilitation 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 (Antioch Scattered
Site Renovation), Series 2018A” 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.
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 November 1, 2039, 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 will not have a rating assigned to them from any rating service.
In the event either the Bondowner Representative or the Borrower determines that
legislative, judicial or other developments have occurred or other circumstances have emerged
which could result in interest on the Bonds not being excluded from gross income for federal
income tax purposes, or otherwise determines that it is in its best interest to convert the Bonds
into a fully funded obligation in order to assure that interest on the Bonds will remain excluded
from gross income for federal income tax purposes, and, in the case of such determination by the
Borrower, such action will resolve the uncertainty with respect to the exclusion of interest on the
Bonds from gross income for federal income tax purposes and will not jeopardize receipt of
previously committed unfunded debt or equity funding for the Project, then such party may
provide a written letter of direction (a “Draw-Down Notice”) to the other party and to the Issuer
as provided herein to cause the full maximum purchase price of the Bonds to be funded. The
Draw-Down Notice, if given, shall take effect on the fifth (5th) Business Day following the date
(or such different number of Business Days to which the Borrower and the Bondowner
Representative may agree in writing) on which either the Borrower or the Bondowner
Representative sends written notification to the other party hereto and to the Issuer referencing
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the Draw-Down Notice and containing substantially the following words: “The
[Borrower/Bondowner Representative] elects to [draw/fund] the remaining proceeds of the
Bonds ($__________) effective ____________ (the “Draw-Down Date”).” The Draw-Down Notice
will be delivered in the manner provided for notices under this Indenture. Promptly after receipt
of a Draw-Down Notice, the Borrower and Bondowner Representative shall cause the requisition
of the proceeds of the remaining Bonds (the “Remaining Proceeds”) into the Program Fund, or,
at Bondowner Representative’s election, into another account held by a paying agent appointed
by Bondowner Representative (with written notice to the Issuer) and pledged to Bondowner
Representative as additional security for the repayment of the Loan, for disbursements to the
Borrower pursuant to the Loan Agreement. The Borrower agrees to pay to the Bondowner
Representative or deposit into the Program Fund on the Draw-Down Date, an amount of funds
to be agreed upon by the Bondowner Representative and the Borrower (with written notice to the
Issuer) prior to the Draw-Down Date to cover the expected “Negative Arbitrage” for the period
between the Draw-Down Date and the date of each expected draw in accordance with the then-
approved draw schedule under this Indenture (the “Negative Arbitrage Deposit”). For this
purpose, the Negative Arbitrage shall be calculated, with respect to each subsequent expected
draw by multiplying the dollar amount of such draw by the difference between (i) the interest
rate on the Bonds and (ii) the interest rate, if any, which may be obtainable under any Permitted
Investments into which the Borrower and Bondowner Representative may agree Remaining
Proceeds may be invested while held under this Indenture or otherwise in a separate account
(provided that the assumed rate of earnings following the date on which any such Permitted
Investment matures or may be redeemed shall be 0%). As long as the interest rate on the Note is
a variable rate, Negative Arbitrage shall be computed by assuming for any period in question,
that the Bonds will bear interest during such period at the annual interest rate equal to the
variable rate in effect on the date of computation plus __%, unless the amount on deposit are
invested in Permitted Investments bearing interest at the same index or other variable rate on
which the interest rate on the Note is computed, in which case the spread between the two rates
may be used. The Bondowner Representative may include in the Draw-Down Notice a request
that a paying agent be appointed to hold, invest and disburse the Remaining Proceeds. As used
herein, “Permitted Investment” means any investment that at the time of investment is lawful
under the laws of the State of California for the funds to be invested.
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
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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
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. (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 any Bond shall be surrendered for
transfer, the Issuer shall execute and the Bondowner Representative shall authenticate and
deliver a new Bond.
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(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;
(ii) the Bonds shall only be transferred in Authorized Denominations, and
only to (A) an entity that is an Approved Institutional Buyer, or (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;
(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 being 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
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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 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 Agreements;
(b) original executed counterparts of this Indenture, the Regulatory Agreements,
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;
(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
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(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 Agreements 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 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, 2021.
(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.
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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.
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.
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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 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 Agreements, 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
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(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 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 or the State of
California or any of its political subdivisions nor do 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.
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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 Representative
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.
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.
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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
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 Agreements 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
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replacement of the Agreement, the Deed of Trust, the Regulatory Agreements, 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 Agreements, 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 Agreements and in the Tax Certificate,
the Issuer shall not take, nor permit nor suffer to be taken by the Bondowner Representative 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 Agreements 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 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
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Agreement, in the Regulatory Agreements 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 Agreements 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 Agreements 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 Agreements 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 Agreements 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 Agreements 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.
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
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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 Agreements 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 each of the two Regulatory Agreements.
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 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 allocations of
the State of California’s private activity bond volume cap under section 146 of the Code
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to the Issuer for the Bonds, and the Issuer will comply with the requirements of the Code
with respect to such allocations. 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.
(f) The Issuer has not authorized or approved any offering statement (or similar
document) that describes the Bonds and the related financing of the Project intended for
use in marketing the Bonds.
(g) The Issuer has not engaged the services of any placement agent in connection
with the offer or sale of the Bonds.
The Issuer makes no representation or warranty that the Project 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
(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 shall 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-
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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 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
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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,
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
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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.
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 from 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 Agreements, the Bonds or this Indenture,
except only to the extent amounts are received for the payment thereof under the Loan
Documents.
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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
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 Agreements unless a Responsible Officer of the
Bondowner Representative shall be specifically notified in writing of such default by the
Issuer or the Borrower;
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(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 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;
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(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 Agreements 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 and 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 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
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(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 Agreements. 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 and its
counsel, has a substantial bearing on the interests of owners of the Bonds and, subject to the
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
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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.
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;
or (b) 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
(b) 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 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 (b) 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 act 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
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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.
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
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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.
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
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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
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, 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:
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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: Wells Fargo Bank, National Association
MAC #A0119-177
333 Market Street, 17th Floor
San Francisco, CA 94105
Attention: Loan Administration Officer
The Borrower: Antioch Recap, L.P.
c/o Resources For Community Development
2220 Oxford Street
Berkeley, CA 94704
Attention: Executive Director
with a copy to: Gubb & Barshay LLP
505 14th Street, Suite 1050
Oakland, CA 94612
Attention: Scott Barshay, Esq.
and a copy to: The Investor Limited Partner
The Investor Limited Partner: RSEP Holding, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
with a copy to: Bocarsly Emden Cowan Esmail & Arndt LLP
633 West Fifth Street, 64th Floor
Los Angeles, CA 90071
Attention: Daryll Kidd
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
October 16, 2018 BOS Minutes 480
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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 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
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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.
October 16, 2018 BOS Minutes 482
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:
Jeff Bennett,
Senior Vice President
[Signature Page to Indenture of Trust – Antioch Scattered Site Renovation]
03007.43:J15228
October 16, 2018 BOS Minutes 483
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
(ANTIOCH SCATTERED SITE RENOVATION),
SERIES 2018A
Dated Date Maturity Date
November 1, 2018 November 1, 2039
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 Antioch Recap, 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 December 3, 2018 (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
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.
October 16, 2018 BOS Minutes 484
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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 (Antioch Scattered Site Renovation), Series
2018A” (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 November 1, 2018 (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 November 1, 2018 (the “Loan Agreement”) among the Bondowner
Representative, the Issuer and the Borrower, to finance the acquisition and rehabilitation of 56
units of residential rental housing located in the City of Antioch, 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 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
October 16, 2018 BOS Minutes 485
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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 participating 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.
October 16, 2018 BOS Minutes 486
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:
Karen Kitchoff,
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
October 16, 2018 BOS Minutes 487
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.
October 16, 2018 BOS Minutes 488
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 (Antioch Scattered
Site Renovation), Series 2018A
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 November 1, 2018 (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 acquisition and rehabilitation of
56 units of multifamily rental housing located in Antioch, California (the “Project”), as
more particularly described in that certain Loan Agreement, dated as of November 1, 2018
(the “Loan Agreement”) by and among the Bondowner Representative, the Issuer and
Antioch Recap, L.P., a California limited partnership (the “Borrower”).
(b) The Purchaser is 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 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
October 16, 2018 BOS Minutes 489
B-2
that any current exemption from registration of the Bonds does not affect or diminish such
requirements.
(f) The Purchaser is familiar with the conditions, financial 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 Agreements.
(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.
(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.
October 16, 2018 BOS Minutes 490
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(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.
(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).
October 16, 2018 BOS Minutes 491
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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:
October 16, 2018 BOS Minutes 492
Loan No. 1018337
4819-2072-9453v.3 0088288-000078
LOAN AGREEMENT
among
COUNTY OF CONTRA COSTA, CALIFORNIA
as Issuer
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Bondowner Representative
and
ANTIOCH RECAP, L.P.,
a California limited partnership
as Borrower
Relating to
$_________________.00
County of Contra Costa
Multifamily Housing Revenue Bonds
(Antioch Scattered Site Renovation),
Series 2018A
Dated as of _________________, 2018
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 _________________, 2018 by the Issuer
for the benefit of Wells Fargo Bank, National Association, as the initial Bondowner Representative.
October 16, 2018 BOS Minutes 493
Loan No. 1018337
-1-
4819-2072-9453v.3 0088288-000078
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement” or this “Loan Agreement”) is made and entered
into as of ______________, 2018, 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 ANTIOCH RECAP,
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 proceeds to make loans for
the acquisition, rehabilitation 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
(Antioch Scattered Site Renovation), Series 2018A, in the original principal amount of up to
$______________ (the “Bonds”) for the purpose of making a loan (the “Loan”) to finance, in part, the
acquisition and rehabilitation of (a) a low-income multifamily residential development located at 1945 and
1949 Cavallo Road, Antioch, California, and containing a total of twenty-four (24) units (the “Pinecrest
Apartments”), and (b) a low-income multifamily residential development located at 104-106 W. 20th
Street and 35-107 W. 20th Street, Antioch, California, and containing a total of thirty-two (32) units (the
“Terrace Glen Apartments”; the Pinecrest Apartments and the Terrace Glen Apartments being referred
to collectively herein as the “Improvements” or the “Project”) located on 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 ______________, 2018, 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 terms
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
$______________ (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. The Note will be secured
by that certain Construction and Permanent Deed of Trust with Absolute Assignment of Leases and
Rents, Security Agreement and Fixture Filing, dated as of even date herewith (the “Deed of Trust”),
executed by Borrower for the benefit of Issuer and recorded in the Official Records of Contra Costa
County, California (the “Official Records”), encumbing the Project. In order to secure, among other
things, the payments due under the Note and this Loan Agreement, the Deed of Trust will be assigned by
Issuer to Bondowner Representative pursuant to that certain Assignment of Deed of Trust and Loan
Documents, dated as of even date herewith, and recorded in the Official Records substantially
concurrently with the Deed of Trust; and
WHEREAS in order to secure additional financing for the Project, Borrower has (a) 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 $______________ (the “New HOME
Loan”), (b) assumed a loan from Pinecrest Affordable Housing L.P., a California limited partnership (the
"Pinecrest Seller"), in the amount of $_______________ (the “Original Pinecrest HOME Loan”), and
assumed a loan from Resources for Community Development, a California nonprofit public benefit
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corporation (in such capacity, the “Terrace Glen Seller”), in the amount of $_______________ (the
“Original Terrace Glen HOME Loan”, and together with the New HOME Loan and the Original Pinecrest
HOME Loan, the “County Loan”), pursuant to that certain Development Loan Agreement dated as of
______________, 2018, by and between Borrower and the County (the “County Loan Agreement”).
The New HOME Loan will be evidenced by that certain Promissory Note (New County Loan) dated as of
______________, 2018, made by Borrower to the order of the County in the face principal amount of
$__________________ (the “New HOME Note”), the Original Pinecrest HOME Loan will be evidenced
by that certain Promissory Note (Restructured Pinecrest Loan) dated as of _________________, 2018,
made by Borrower to the order of the County in the face principal amount of $________________ (the
“Original Pinecrest HOME Note”), and the Original Terrace Glen HOME Loan will be evidenced by that
certain Promissory Note (Restructured Terrace Glen Loan) dated as of _________________, 2018, made
by Borrower to the order of the County in the face principal amount of $________________ (the “Original
Terrace Glen HOME Note”, and together with the New HOME Note and the Original Pinecrest HOME
Note, the “County Note”). The County Loan and the County Note will be secured by that certain Deed of
Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing (Antioch Scattered Site
Renovation) dated as of ______________, 2018, made by Borrower for the benefit of the County and
recorded in 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 and Borrower will enter into (1)
that certain County Regulatory Agreement and Declaration of Restrictive Covenants Antioch Scattered
Site Renovation (Pinecrest Existing Loan Funds), (2) that certain HOME Regulatory Agreement and
Declaration of Restrictive Covenants Antioch Scattered Site Renovation (Pinecrest New HOME Units), (3)
that certain County Regulatory Agreement and Declaration of Restrictive Covenants Antioch Scattered
Site Renovation (Terrace Glen Existing Loan Funds), and (4) that certain HOME Regulatory Agreement
and Declaration of Restrictive Covenants Antioch Scattered Site Renovation (Terrace Glen New HOME
Units), each, dated as of ______________, 2018 and recorded in the Official Records substantially
concurrently with the Deed of Trust (collectively, the “County Regulatory Agreement”, together with the
County Loan Agreement, the County Note and the County Deed of Trust, the “County Loan
Documents”). 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, pursuant to which the County will subordinate
all of the County Loan Documents to the Loan Documents (the “County Subordination Agreement”);
and
WHEREAS Borrower has also obtained a loan made by the City of Antioch, a municipal
corporation (the “City”), to Borrower in the principal amount of $______________ (the “City Loan”),
pursuant to that certain Restructured Loan Agreement dated as of ________________, 2018, by and
between Borrower and the City (the “City Loan Agreement”). The City Loan is evidenced by that certain
Promissory Note (Antioch Scattered Site Renovation) dated as of __________________, 2018, made by
Borrower to the order of the City in the face principal amount of $__________________ (the “City Note”),
and secured by that certain Deed of Trust with Assignment of Rents, Security Agreement and Fixture
Filing (Antioch Scattered Site Renovation) dated as of _________________, 2018, executed by Borrower
for the benefit of the City (the “City Deed of Trust”). In connection with the City Loan, the City and
Borrower are entering into (a) that certain Regulatory Agreement and Declaration of Restrictive
Covenants (Antioch Scattered Site Renovation Pinecrest Apartments) (the “City Pinecrest Regulatory
Agreement”), (b) that certain Notice of Affordability Restrictions on Transfer of Property (Pinecrest) (the
“Notice of Affordability Restrictions (Pinecrest)”), (c) that certain Regulatory Agreement and
Declaration of Restrictive Covenants (Antioch Scattered Site Renovation Terrace Glen Apartments) (the
“City Terrace Glen Regulatory Agreement”, and together with the City Pinecrest Regulatory
Agreement, the “City Regulatory Agreements”), and (d) that certain Notice of Affordability Restrictions
on Transfer of Property (Terrace Glen) (the “Notice of Affordability Restrictions (Terrace Glen)”, and
together with the Notice of Affordability Restrictions (Pinecrest), the “City Notice of Restrictions”), each,
dated as of ___________________, 2018 and recorded in the Official Records substantially concurrently
with the Deed of Trust. The City Loan Agreement, the City Note, the City Deed of Trust, the City
Regulatory Agreements and the City Notice of Restrictions are collectively referred to herein as the “City
Loan Documents”. 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
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Records substantially concurrently with the Deed of Trust, pursuant to which the City will subordinate all
of the City Loan Documents to the Loan Documents (the “City Subordination Agreement”); and
WHEREAS, additional funds shall be contributed to the Project in the aggregate amount of
///[$6,752,118.00]/// (the “Capital Contributions”) from RSEP HOLDING, LLC, a Delaware limited liability
company, in its capacity as investor limited partner in Borrower (together with its permitted successors
and assigns, “Investor Limited Partner”); 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.
“Adjusted Operating Expenses” means the Operating Expenses, adjusted by (i) any periodic or
seasonal changes in Operating Expenses (including not yet incurred and re-leasing expenses) occurring
outside of the Stabilization Period and (ii) the greater of (a) actual Operating Expenses; (b) an amount
estimated by Bondowner Representative; or (c) an amount estimated in the appraisal, for the specific
period.
“Adjusted Operating Revenues” means the Operating Revenues, adjusted by (i) adjustment to
include any periodic or seasonal changes in Operating Revenues occurring outside the Stabilization
Period, (ii) adjustments to Operating Revenues to exclude amounts attributable to occupancy in excess of
10% and (iii) the underwriting assumptions used by Bondowner Representative as of the date hereof.
Rents used in calculating Adjusted Operating Revenues will include only actual rents collected pursuant
to Acceptable Leases and may not include premiums (excess rent above typical rent for a standard unit
with a standard term lease) derived from corporate units (units rented to business entities), furnished
units, short term leases or similar factors.
“AHAP Contracts” shall mean, collectively, (a) that certain Section 8 Project-Based Voucher
Program PBV Agreement to Enter into Housing Assistance Payment Contract with respect to the
Pinecrest Apartments, providing subsidies for a total of three (3) units, and (b) that certain Section 8
Project-Based Voucher Program PBV Agreement to Enter into Housing Assistance Payment Contract
with respect to the Terrace Glen Apartments, providing subsidies for a total of four (4) units, each of
which shall have an initial term of twenty (20) years, with an automatic twenty (20) year renewal, and shall
otherwise be in form and substance approved by Bondowner Representative.
“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,
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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.
“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 residential units as
approved by the Bondowner Representative.
“Architect” means Anne Phillips Architecture or another architect approved in writing by
Bondowner Representative.
“Architect’s Agreement” means that certain Standard Form of Agreement Between Owner and
Architect, dated as of March 26, 2018, by and between Architect and RCD GP III, LLC, as predecessor-
in-interest to 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 Agreements and any other
documents executed in connection with the issuance of the Bonds, including as applicable, the Loan
Documents.
“Bond Fund” has the meaning ascribed to such term in Section 5.02 of the Indenture.
“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.
“Bonds” has the meaning ascribed to such term in the third recital to this Loan Agreement.
“Borrower” means Antioch Recap, 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, director, 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.
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“Business Day” means a day of the week (but not a Saturday, Sunday or holiday) 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 ///[$6,752,118.00]///, which
the Investor Limited Partner has committed to contribute to the capital of Borrower pursuant to the
Partnership Documents and as described below:
Payment Amount
% of Total
Investment Timing
1 $______________.00 ___% Concurrently with the issuance of the
Bonds.
2 $______________.00 ___% Mandatory Conversion Date
3 $______________.00 ___% Receipt of IRS Form 8609
TOTAL $______________.00 100.0% Total Capital Contributions
“City” 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 have the meaning ascribed thereto in the seventh recital to this Loan
Agreement.
“City Note” shall have the meaning ascribed thereto in the seventh recital to this Loan Agreement.
“City Regulatory Agreements” 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 __________________________.
“Civil Engineering Agreement” means that certain __________________________ dated
__________________________ between Borrower and Civil Engineer.
“Closing Date” means ______________, 2018 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 _________________, 20__, the date by which rehabilitation of the
Improvements must be completed.
“Constant Carry Test” means Net Operating Income divided by the Permanent Loan amount is
equal to or greater than _________________________ percent (_____%) on the Conversion Date and is
projected to be equal to or greater than _________________________ percent (_____%) on the
______________________________ (_____) month anniversary of the Conversion Date based on
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inflationary increases (three percent (3.00% annually with respect to Operating Expenses and two
percent (2.00%) annually with respect to Operating Revenue). The calculation of the Permanent Loan
over the term shall take into account the anticipated amortization of the Permanent Loan based on the
amortization schedule attached to the Financing Agreement.
“Construction Agreement” means that certain __________________________, dated as of
______________, 2018, executed by and between Borrower and Contractor, for the rehabilitation of the
Project, as may be amended or replaced from time to time.
“Construction Term” means the period commencing on the Effective Date and terminating on the
Conversion Date.
“Contract Administrator” or “Housing Authority” means the Housing Authority of the County of
Contra Costa.
“Contractor” means _____________________________________________.
“Conversion” shall have the meaning ascribed to that term in Section 3.18 of this Loan
Agreement.
“Conversion Conditions” shall have the meaning ascribed to that term in Section 3.18 of this Loan
Agreement.
“Conversion Date” means the date on which all of the Conversion Conditions are satisfied, as
determined by Bondowner Representative.
“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 have the meaning ascribed thereto in the sixth recital to this Loan
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.
“Debt Service Coverage Ratio” means Net Operating Income divided by the total of all monthly
payments of principal and interest on the Note (at the interest rate after the Conversion Date) plus the
principal and interest payments due on all other debt requiring periodic payments irrespective of the
Property’s cash flow.
“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” shall have the meaning ascribed to such term in the Note.
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“Delivery Assurance Deed of Trust” shall mean that certain Delivery Assurance Multifamily Deed
of Trust, Security Agreement and Fixture Filing made by Borrower, as Trustor, to Title Company, as
Trustee, for the benefit of Bondowner Representative, executed as of even date herewith.
“Delivery Assurance Note” means that certain Delivery Assurance Note made by Borrower to the
order of Bondowner Representative, executed as of even date herewith.
“Developer” means Resources for Community Development, 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 and 4.3.
“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.
“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 and a reasonable management fee.
“Extended Mandatory Conversion Date” means _______________, 2020 ///[6 MONTHS AFTER
INITIAL MANDATORY CONVERSION DATE]///.
“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.
“General Partner” means RCD GP III LLC, a California limited liability company.
“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.
“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
Property in such Period as is reasonably and in good faith approved by Bondowner Representative.
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“Gross Operating Income” shall have the meaning ascribed to such term in Section 12.5.
“Guarantor” means Resources for Community Development, 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 Contracts” shall mean, collectively, (a) that certain Section 8 Project-Based Voucher
Program PBV Housing Assistance Payment Contract with respect to the Pinecrest Apartments, providing
subsidies for a total of three (3) units, and (b) that certain Section 8 Project-Based Voucher Program PBV
Housing Assistance Payment Contract with respect to the Terrace Glen Apartments, providing subsidies
for a total of four (4) units, each of which shall have an initial term of twenty (20) years, with an automatic
twenty (20) year renewal, and shall otherwise be in form and substance approved by 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).
“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 Rental
Assistance Demonstration Use Agreement dated as of ______________, 2018, among Borrower, Issuer
and Bondowner Representative, subordinating the liens and charges of the Deed of Trust, the Regulatory
Agreements and the Delivery Assurance Deed of Trust to the HUD Use Agreement.
“HUD Use Agreement” shall have the meaning ascribed thereto in Section 4.1(u).
“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 indemnity 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 ________________, 2018 by and between
Issuer and Bondowner Representative, as it may be amended from time to time.
“Initial Capital Contribution” shall have the meaning ascribed to such term in Section 8.2(w).
“Investor Affiliate” means entities in which Red Stone Equity Partners, LLC, a Delaware limited
liability company, 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.
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“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
__________________________ Million and No/100 Dollars ($______________.00); 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.
“Mandatory Conversion Date” means ________________, 2020 ///[19 MONTH TERM]///, or shall
mean the Extended Mandatory Conversion Date upon exercise of the Option to Extend.
“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.
“Maximum Permanent Loan Amount” shall have the meaning ascribed thereto in Section 3.19.
“Net Operating Income” means the excess of the Adjusted Operating Revenues over the
Adjusted Operating Expenses.
“Non-Recourse Indemnification” means that certain Non-Recourse Indemnification Agreement
dated as of even date herewith, executed by Guarantor in favor of Bondowner Representative.
“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, all reasonable and necessary expenses of
operating the Property in the ordinary course of business which are actually incurred by the Borrower
(appropriately pro-rated for any expenses that, although actually incurred in a particular period, also relate
to other periods) and which are directly associated with and fairly allocable to the Property for the
applicable period, including, without limitation, ad valorem real estate taxes and assessments, fees and
expenses of the Issuer, insurance premiums and regularly scheduled tax and insurance impounds paid
with respect to the Loan (without taking any such payment or expense into account more than once),
deposits to replacement reserves, maintenance costs, management fees (not including out-of-pocket cost
reimbursements required under the applicable management agreement in such limitation), social services
costs, accounting, legal, and other professional fees, fees relating to wages, salaries, personnel
expenses, and fees, reimbursements and payments to the partners including asset management fees to
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the Investment Limited Partner (unless such fees, reimbursements and payments are payable solely to
the extent of available net cash flow), but excluding payments of principal and interest on the Note, capital
expenditures, any of the foregoing expenses which are paid from deposits to cash reserves previously
included as Operating Expenses, and any payment or expense for which the Borrower was or is to be
reimbursed from proceeds of the Permanent Loan or insurance or by any third party. Operating
Expenses shall not include federal, state or local income taxes, corporate overhead or fees or legal and
other professional fees unrelated to the operation of the Property. Operating Expenses shall be based on
the greater of actual or underwritten as reflected on Exhibit G, attached hereto and incorporated herein by
this reference. For purposes of any calculations under this Loan Agreement requiring trending of
Operating Expenses such expenses as determined in accordance with this definition shall be trended
annually at three percent (3.00%).
“Operating Revenues” means all cash receipts of the Borrower from operation of the Property or
otherwise arising in respect of the Property which are properly allocable to the Property for the applicable
period, including receipts from leases and parking agreements, concession fees and charges and other
miscellaneous operating revenues, proceeds from rental or business interruption insurance, withdrawals
from cash reserves (except to the extent any operating expenses paid therewith are excluded from
Operating Expenses), but excluding security deposits and earnest money deposits until they are forfeited
by the depositor, advance rentals until they are earned, and proceeds from a sale or other disposition.
Operating Revenues shall be based on the lower of actual or underwritten as reflected on Exhibit G,
attached hereto and incorporated herein by this reference. For purposes of any calculations under this
Loan Agreement vacancy shall be equal to the higher of actual vacancy or five percent (5.00%) and any
calculations requiring trending of Operating Revenues such revenues as determined in accordance with
this definition shall be trended annually at two percent (2.00%).
“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.
“Option to Extend” means the option to extend the Mandatory Conversion Date pursuant to
Section 3.6.
“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 Antioch Recap, L.P., dated on or about ______________, 2018, by and among General
Partner, Investor Limited Partner, Special Limited Partner and _________________________, a
California nonprofit public benefit corporation, 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 Loan” means, after the Conversion Date, the remaining unpaid portion of the Loan in
a principal amount not to exceed the Maximum Permanent Loan Amount with the amount of such
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Permanent Loan subject to reduction through the application of a Pre-Conversion Loan Equalization
Payment if necessary to satisfy the Conversion Conditions.
“Permanent Loan Documents” means any amendment, modification or restatement of the Loan
Documents determined by Bondowner Representative to be necessary to evidence the conversion of the
Loan to the Permanent Loan. Bondowner Representative reserves the right to require such other
documents, instruments and agreements reasonably necessary to document the Permanent Loan.
“Permitted Encumbrances” means the HUD Use Agreement, the Regulatory Agreements, the
County Regulatory Agreements, the County Deed of Trust, the City Regulatory Agreements, the City
Deed of Trust, 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 Agreements.
“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 obligations 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 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 interests in Investor Limited
Partner, the Investor Limited Partner remains managed or controlled by an Investor Affiliate. 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, territory 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.
“Pre-Conversion Loan Equalization Payment” means a principal payment by the Borrower made
on or before the Mandatory Conversion Date in order to reduce the principal balance of the Loan to the
amount required to satisfy the Conversion Conditions.
“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
rehabilitation of the Project including, without limitation, costs for the acquisition of property, the removal
or demolition of existing structures, the rehabilitation 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 made 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.
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“Property” means the real property described on Exhibit A.
“Property Manager” means John Stewart Company, a California corporation.
“Property Management Agreement” means that certain Antioch Recap Scattered Site
Management Agreement, dated as of August 17, 2018, by and between the Borrower and the Property
Manager.
“Qualified Project Costs” shall have the meaning given to the term “Qualified Project Costs” in
Section 1 of the Regulatory Agreements.
“RAD HAP Contract” shall have the meaning ascribed thereto in Section 4.1(u).
“Regulatory Agreements” means, collectively, (a) that certain Regulatory Agreement and
Declaration of Restrictive Covenants with respect to the Pinecrest Apartments, and (b) that certain
Regulatory Agreement and Declaration of Restrictive Covenants with respect to the Terrace Glen
Apartments, each, dated as of ______________, 2018, and executed 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 “insider” and “debtor” have the meanings provided for those terms by Section 101 of the Federal
Bankruptcy Code.
“Replacement Reserve Account” shall mean the account established with Bondowner
Representative (or with another depository approved by Bondowner Representative), in the name of
Borrower, as pledgor, for the benefit of Bondowner Representative as pledgee, in accordance with the
Replacement Reserve Agreement for the replacement of major capital improvements of the Property
including, but not limited to, heating, ventilation, air conditioning, re-plumbing, roofing and sprinkler
systems, but not for routine maintenance costs.
“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.
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“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.
“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.
“Special Limited Partner” means Red Stone Equity Manager, LLC, a Delaware limited liability
company.
“Stabilization Period” means the three (3) consecutive, full calendar months immediately
preceding the Conversion Date.
“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, and any other subordinate lender now or
hereafter approved by Bondowner Representative.
“Subordinate Loan(s)” means the County Loan, the City 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 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 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 Date.
“Taxes” shall have the meaning ascribed to such term in the Note.
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“TCAC” means the California Tax Credit Allocation Committee.
“TCAC Subordination Agreement” means that certain Subordination and Intercreditor Agreement
dated as of even date herewith, by and between TCAC and Bondowner Representative.
“Title Insurer” means First American Title Insurance 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
2.1 ISSUANCE OF BONDS. Upon execution of this Loan Agreement, the other Loan
Documents, the Indenture and the Regulatory Agreements, 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 initial 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 be 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.
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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 and
Bondowner Representative), abstractors’, title insurance, financial, engineering, environmental,
construction services, survey, appraisal and accounting fees and expenses, administrative fees,
printing and engraving costs and other expenses incurred and to be incurred by Borrower, Issuer
and Bondowner Representative 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 each Regulatory
Agreement);
(e) the fees payable to Bondowner Representative pursuant to Section 3.12;
(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 satisfaction 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 and the payment of any applicable prepayment fee, prepayment premium or rate lock
breakage fee under the Note or the Delivery Assurance 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
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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 Maximum
Permanent Loan Amount without the prior consent of Bondowner Representative. 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 any applicable prepayment fee, prepayment premium or
rate lock breakage fee under the Note or the Delivery Assurance Note.
(c) For so long as any portion of the principal of the Loan is outstanding, on or
before the first Business Day of each month prior to the Conversion Date, Borrower shall pay to
Bondowner Representative an amount equal to the interest accrued on the Loan during the
previous month at the applicable Note Rate (as defined in the Note), which shall be determined
as provided in the Note.
(d) Following the Conversion Date and for so long as any principal of the Loan is
outstanding, Borrower shall pay, on or before the first Business Day of each month, to
Bondowner Representative (i) an amount equal to the Level Payment Amount (as defined in the
Note) determined in accordance with Section 3(b) of the Note, and (ii) any deposit due in the
Replacement Reserve Account under the Replacement Reserve Agreement, the Operating
Deficit Reserve pursuant to Section 11.47 of this Loan Agreement or the Tax and Insurance
Impound pursuant to Section 11.31 of this Loan Agreement.
(e) 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.
(f) 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.
(g) 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 interest on, or otherwise, and whether at maturity or by redemption (including
mandatory sinking fund redemption) or acceleration or otherwise.
(h) 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 levied 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
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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 each
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 Agreements, 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 Agreements,
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.
(i) 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.
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 and 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;
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(b) (i) all indemnity payments required to be made under this Loan Agreement and
the Regulatory Agreements (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 exercising 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 MATURITY DATE. The Maturity Date of the Loan shall be as set forth in the Note.
On the Maturity Date, all sums due and owing under this Loan Agreement, the other Loan Documents
and the Bond Documents shall be repaid in full; provided, however, that if the Conversion does not occur
on or before the Mandatory Conversion Date, then all sums due and owing under this Loan Agreement,
the other Loan Documents and the Bond Documents shall be repaid in full on the Mandatory Conversion
Date.
3.6 OPTION TO EXTEND. Borrower shall have the option to extend the Mandatory
Conversion Date from ________________, 2020 (for the purposes of this section, the “Original
Mandatory Conversion Date”) to the 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 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 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 execute or cause the execution of all documents reasonably
required by Bondowner Representative to exercise the 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;
(d) 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;
(e) 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,
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;
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(f) 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;
(g) 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;
(h) 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 the Investor Limited Partner’s obligations
to make capital contributions thereunder are unamended (other than amendments consented to
in writing by Bondowner Representative) and in full force and effect, and the Investor Limited
Partner has made the Initial Capital Contribution;
(i) The rehabilitation 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 for each of the scattered sites, 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;
(j) Borrower shall have extended to a date not earlier than thirty (30) days after the
Extended Mandatory Conversion Date any date by which Conversion and the closing of the
Permanent Loan shall have occurred 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;
(k) Borrower shall have delivered to Bondowner Representative written evidence
satisfactory to Bondowner Representative showing that (i) not less than ninety percent (90%) 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 percent (90%) 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;
(l) The balance in the interest reserve as of the Original Mandatory Conversion
Date, as may be supplemented by Borrower, shall be sufficient to pay interest on the Loan until
the Extended Mandatory Conversion Date, as determined by Bondowner Representative;
(m) (i) Bondowner Representative’s commitment to make the Permanent Loan shall
be in full force and effect and the rate lock agreement shall have been extended to a date that is
not earlier than the Extended Mandatory Conversion Date; and
(n) Borrower shall have delivered evidence satisfactory to Bondowner
Representative that the Borrower will be able to satisfy all Conversion Conditions on or before the
Extended Mandatory Conversion Date.
Upon extension of the Mandatory Conversion Date to the 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 Extended
Mandatory Conversion Date, and the maturity date of the Note shall be unaffected. Except as
modified by the exercise of this 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.
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3.7 INTENTIONALLY OMITTED.
3.8 INTEREST RATE. Interest shall accrue on the outstanding principal of the Loan as
provided in Section 2 of the Note, and shall be payable as provided in Section 3 of 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 the 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 intention 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, 3.6(c) and 3.7(c) 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 Bondowner Representative a security interest in all of Borrower’s right, title and interest, now
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 ($______________.00) ///[GREATER OF (A) $54,440 AND (B) 0.50% OF LOAN AMOUNT]///,
and to Bondowner Representative, on the closing date, a permanent loan commitment fee in an amount
equal to __________________________ and No/100 Dollars ($______________.00) ///[1% of THE
MAXIMUM PERMANENT LOAN AMOUNT]///.
Bondowner Representative shall earn the fees described in this Section 3.12 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,
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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(d)
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 4A(d) of the Regulatory Agreement.
3.18 CONVERSION. At any time during the Construction Term, Borrower shall have the
option to convert the Loan to the Permanent Loan, subject to the completion of all of the following
requirements (collectively, the “Conversion Conditions”) to the satisfaction of Bondowner
Representative and its counsel, in their sole discretion, prior to the Mandatory Conversion Date (as may
be extended pursuant to Section 3.6):
(a) Bondowner Representative receives a written request for conversion of the Loan
from Borrower at least sixty (60) days prior to the proposed Conversion Date; and
(b) Bondowner Representatve shall have received a Pre-Conversion Loan
Equalization Payment to pay the Loan down to the Maximum Permanent Loan Amount, together
with any additional Pre-Conversion Loan Equalization Payment(s) necessary to satisfy the
requirements of subsection 3.18(m) and/or subsection 3.18(p), below; and
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(c) As of the proposed Conversion Date, there exists no Default under this Loan
Agreement and no event which, with the passing of time or the giving of notice, or both, would
constitute an Default; and
(d) Borrower delivers to Bondowner Representative a certificate certifying that: (i)
there exists no Default under this Loan Agreement and no event or condition which, with the
passing of time or the giving of notice, or both, would constitute an Default; (ii) there has occurred
no material adverse change in the business prospects, financial condition or results of operations
of Borrower or any Guarantor since the Effective Date; (iii) all of the Loan Documents are in full
force and effect; and (iv) all of the representations and warranties set forth therein are true and
correct; and
(e) Borrower shall provide Bondowner Representative with written evidence that the
Investor Limited Partner has made, or will make on or before the Conversion Date, all of its
scheduled Capital Contributions that are due as of the proposed Conversion Date and that at
least ninety percent (90%) of the total Capital Contributions to be made by Investor Limited
Partner have been made by the Conversion Date; and
(f) Receipt and approval by Bondowner Representative of an as-built ALTA survey
of the Property and Improvements, dated within ninety (90) days of the Conversion Date; and
(g) Receipt and approval by Bondowner Representative of an endorsement to the
existing lender’s title insurance policy dated as of the Conversion Date and containing no title
exceptions other than encumbrances approved in writing by Bondowner Representative; and
(h) Receipt and approval by Bondowner Representative of the results of then-current
UCC, judgment and tax liens searches performed at the appropriate state and local levels with
respect to Borrower (and each general partner of Borrower if Borrower is a limited partnership);
and
(i) Receipt and approval by Bondowner Representative of complete copies of any
changes or modifications to the organizational documents of Borrower, each managing member
of Borrower and any other principal of Borrower since the date hereof, along with updated legal
existence certificates and, if applicable, good standing certificates and certificates of authority to
transact business in the jurisdiction in which the Property is located; and
(j) Receipt by Bondowner Representative of evidence that all insurance coverages
required by the Loan Documents are in full force and effect; and
(k) Completion of rehabilitation shall have occurred (i) in a good and workmanlike
manner and substantially in accordance with the Plans and Specifications, and (ii) in compliance
with all applicable requirements of all governmental authorities having jurisdiction over the
Property, including, without limitation, all applicable laws, building codes, zoning requirements,
subdivision requirements, fire and safety laws, as evidenced by a certificate of the Architect
stating that such completion has occurred; and
(l) Receipt and approval by Bondowner Representative of the final inspection report
from the Architect; and
(m) Borrower’s delivery of evidence in the form of certified operating statement for
the Property, that, (i) for the Stabilization Period, the Property has maintained a Debt Service
Coverage Ratio of at least 1.15:1.00, which shall be determined by Bondowner Representative in
its sole but reasonable discretion and (ii) the Property has a projected Debt Service Coverage
Ratio of the greater of (x) 1.15 to 1.00 in the first stabilized year and (y) such Debt Service
Coverage Ratio necessary in the first stabilized year to achieve at least a 1.10 to 1.00 Debt
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Service Coverage Ratio through the Maturity Date, which shall be determined by Bondowner
Representative in its sole but reasonable discretion, and based on inflationary increases as
determined by Bondowner Representative; and
(n) Borrower’s delivery of evidence in the form of certified rent rolls for the Property
that, for the Stabilization Period, at least ninety percent (90%) of the units in the Improvements
shall have been leased to, and occupied by, third party tenants under executed Leases at rents
that are not less than pro forma rents; and
(o) Bondowner Representative’s receipt of evidence that the Borrower has satisfied
the Constant Carry Test which shall be determined by Bondowner Representative in its sole but
reasonable discretion; and
(p) If applicable, receipt by Bondowner Representative of a subordination agreement
for any subordinate financing on the Property permitted by Bondowner Representative; and
(q) Receipt by Bondowner Representative of any amendment or modification of the
Loan Documents required by Bondowner Representative to evidence the Conversion; and
(r) Borrower shall establish the Replacement Reserve Account in accordance with
the terms of the Replacement Reserve Agreement. Borrower shall make monthly deposits to the
Replacement Reserve Account as required pursuant to the terms of the Replacement Reserve
Agreement. All amounts deposited into the Replacement Reserve Account and all earnings
thereon are referred to collectively as the “Replacement Reserve Funds”. Borrower assigns to
Bondowner Representative all of Borrower’s interest in the Replacement Reserve Account and
the Replacement Reserve Funds as additional security for all of the Borrower’s obligations under
the Loan Documents; and
(s) Borrower shall deposit the Operating Reserve with Bondowner Representative
required under Section 11.47 of this Loan Agreement; and
(t) Borrower shall deliver to Bondowner Representative fully executed copies of the
RAD HAP Contract and the HAP Contracts; and
(u) Borrower shall deliver to Bondowner Representative, an annual budget for the
Property for the year in which the proposed Conversion Date occurs; provided that if the
proposed Conversion Date occurs in the last ninety (90) days of the Borrower’s fiscal year, then
Borrower shall also deliver an annual budget for the Property for the following fiscal year; and
(v) Borrower shall deliver to Bondowner Representative evidence acceptable to
Bondowner Representative of the types and amounts of insurance on the Project and in
accordance with Article 7 of this Loan Agreement. Borrower shall also deliver to Bondowner
Representative the current real estate tax statement showing that the taxes for the Property are
based on a fully assessed, completed, operating and stabilized property as improved and that the
Property has been granted the Property Tax Exemption. Borrower shall provide to Bondowner
Representative evidence, in a format acceptable to Bondowner Representative, that all real
estate taxes then due and payable and current insurance premiums have been paid in full when
due; and
(w) Borrower shall have paid to Bondowner Representative a conversion fee in an
amount equal to $5,000; and
(x) Receipt by Bondowner Representative of such additional or confirmatory
documents as Bondowner Representative may reasonably require.
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3.19 PERMANENT FINANCING. Subject to satisfaction of the terms and conditions set
forth in Section 3.18 hereof, the Loan shall convert to the Permanent Loan in an amount equal to
$___________.00 (“Maximum Permanent Loan Amount”), subject to reduction in order to satisfy the
Conversion Conditions.
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 held by Bondowner Representative in the Bond Fund in an amount not to exceed
$50,001 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 delivered 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 Agreements;
(iii) the Deed of Trust;
(iv) the Assignment of Deed of Trust;
(v) the County Regulatory Agreements;
(vi) the City Regulatory Agreements;
(vii) the County Deed of Trust;
(viii) the City Deed of Trust;
(ix) the City Notice of Affordability Restrictions (Pinecrest);
(x) the City Notice of Affordability Restrictions (Terrace Glen);
(xi) the Delivery Assurance Deed of Trust;
(xii) the HUD Subordination Agreement;
(xiii) the County Subordination Agreement;
(xiv) the City Subordination Agreement;
(xv) the TCAC Subordination Agreement; and
(xvi) 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
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Representative shall have 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 satisfactory 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 1 Street Assessments; ALTA 3.2 Zoning (Land Under Development); ALTA 6
Variable Rate; ALTA 8.2 Environmental; ALTA 9.6 Private Rights; ALTA 9.7 Restrictions,
Encroachments, Minerals; ALTA 17 Access and abut; ALTA 17.2 Utility Access; ALTA 18.1
Multiple Tax Parcels; ALTA 19 Contiguity, ALTA 22 Location; ALTA 25 Survey; ALTA 26
Subdivision; ALTA 28 Easement; ALTA 39 Policy Authentication; CLTA 100.19 CCR Violation;
CLTA 100.20 CCR Violation; CLTA 103.11 Access and Abut; CLTA 103.5 Water Rights; CLTA
104.7 Assignment of Rents or Leases; CLTA 112.1 Bondholder; Deletion of Arbitration provisions
(paragraph 13 of Conditions); Special: Electronic signatures on policy/endorsements; and a
commitment to issue such further endorsements as Bondowner Representative may require,
including without limitation, ALTA Form Endorsement 28 (with respect to any easements), CLTA
101.2 or CLTA 101.6 Mechanics’ liens/Notice of completion, CLTA 102.5 Foundation without
encroachment, CLTA Form Endorsement 129 (single tax parcel), ALTA Form Endorsement 3.1
(with parking; improved land), ALTA Form Endorsement 22 (address) 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 acceptable to Bondowner
Representative), containing all the endorsements listed above and any such additional
endorsements as Bondowner Representative may reasonably require upon completion of
rehabilitation 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.
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(g) Delivery of Contracts; Approval of Reports. 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;
(ii) 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;
(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 Authority in connection with the Property and Project; and
(iv) 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 Agreement. 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
Agreement 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
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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 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 disbursed by Bondowner Representative to pay Project
Costs pursuant to the terms and conditions outlined in the Loan Documents.
(o) 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 rehabilitation 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, construction and rehabilitation 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.
(p) ///[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 Improvements; (ii) two sets of the Plans and
Specifications, certified as complete by the Architect, together with evidence of all necessary or
appropriate approvals of governmental agencies; (iii) copies of all agreements which are material
to completion of the Improvements; (iv) copies of all building permits (or if not available, copies of
“Will Issue” letters executed by the City of Antioch or other applicable Governmental Authorities
or other evidence reasonably satisfactory to Bondowner Representative that all required building
permits will be issued upon only the payment of necessary fees) and similar permits, licenses,
approvals, development agreements and other authorizations of governmental agencies required
in connection with the development of the Property and Improvements; and (v) 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.]///
(q) City Loan. Borrower shall have obtained and received one hundred
percent (100%) of the proceeds of the City Loan, all of which shall have been disbursed to pay
Project Costs shown on the Disbursement Budget, and Borrower shall have delivered evidence
satisfactory to Bondowner Representative thereof.
(r) 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.
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(s) Construction. Bondowner Representative shall have received a draft 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 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,
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.
(t) 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 the 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.
(u) Borrower’s Funds Account. Borrower shall have deposited into the Borrower’s
Funds Account an amount equal to $205,000.00 (the “Existing Reserves”), which shall be held
in the Borrower’s Funds Account until Conversion, at which time, Bondowner Representative
shall apply one hundred percent (100%) of the Existing Reserves to repay of a portion of the
Loan.
(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 __________________________ Agreement (for RAD
conversions from Public Housing) (the “RAD Agreement”), pursuant to
which Borrower, Contract Administrator and HUD agree to enter into a
Section 8 Housing Assistance Payments Contracts, including the
Rider(s) attached thereto, providing for Section 8 Housing Assistance
Payments for at least nine (9) units at the Pinecrest Apartments and at
least twelve (12) units at the Terrace Glen Apartments (collectively,
“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 the County of Contra Costa and HUD, relating to the Property (“RCC;
and together with the RAD 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 copies of the AHAP Contracts, and (ii) Borrower shall have granted a collateral
assignment of the AHAP Contracts to Bondowner Representative pursuant to that certain
Assignment of Housing Assistance Payment Contract and Housing Assistance Payments dated
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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”).
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, rehabilitation, 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) City Loan. Borrower shall have obtained and received one hundred
percent (100%) of the proceeds of the City Loan, all of which shall have been disbursed to pay
Project Costs shown on the Disbursement Budget, and delivered evidence satisfactory to
Bondowner Representative thereof.
(d) County Loan. Borrower shall have obtained and received one hundred
percent (100%) of the proceeds of the County Loan, less retention in the amount of $20,000, all
of which shall have been disbursed to pay Project Costs shown on the Disbursement Budget, and
delivered evidence satisfactory to Bondowner Representative thereof.
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.
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(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 rehabilitation of
the Project as Bondowner Representative shall elect in its sole judgment to conduct from time to
time, that rehabilitation 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 rehabilitated 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 without 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.
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(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 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 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 shall
remain in full force and effect, binding upon all parties thereto.
(l) Workmanship. All work performed to date in rehabilitation 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
rehabilitation 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) Rehabilitation. 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 rehabilitation 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
rehabilitation 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 disbursed 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 Daniel Sawislak,
Peter Poon, Carolyn _______________ or Jessica ___________________, 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.
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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 Bondowner Representative in and to, all
monies at any time deposited in the Borrower’s Funds Account.
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 with 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 Initial 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,
rehabilitation, 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
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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 of 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 the likelihood of these damages in any situation. Bondowner
Representative makes no representations or warranties other than those expressly made in this Loan
Agreement.
4.9 LOAN DISBURSEMENTS. Subject to the conditions set forth in Sections 4.1, 4.2 and
4.3, 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 and 4.3, into the Account. All disbursements 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 obligations 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 Agreements 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. REHABILITATION
5.1 COMMENCEMENT AND COMPLETION OF REHABILITATION. Borrower shall
commence rehabilitation of the Improvements without delay after the Effective Date, and shall complete
rehabilitation 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 each site of the Project.
5.2 FORCE MAJEURE. The time within which rehabilitation of the Improvements must be
completed shall be extended for a period of time equal to the period of any delay directly affecting
rehabilitation 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 transportation of materials, supplies or
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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. In 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 rehabilitate 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 rehabilitation 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 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 rehabilitation costs in excess of One Hundred Thousand and No/100th
Dollars ($100,000.00) for any single change or in excess of Two Hundred Fifty Thousand and
No/100th Dollars ($250,000.00) 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 Representative, 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 rehabilitation 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.
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(c) Consent Process. Borrower acknowledges that Bondowner Representative’s
review of any changes and required consent may result in delays in rehabilitation 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 REHABILITATION 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
rehabilitation 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 rehabilitating the Improvements, and that portion, if any, of each cost item
which has been incurred; and (d) a rehabilitation progress schedule detailing the progress of rehabilitation
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 supplier 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 qualification by Bondowner Representative. Bondowner Representative
may contact any such contractor, subcontractor or material supplier to discuss the course of
rehabilitation.
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 Property 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 twenty (20) calendar days of such recording or service or within five (5) 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 REHABILITATION RESPONSIBILITIES. Borrower shall rehabilitate 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 rehabilitation, the qualifications, financial condition and
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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 rehabilitation 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 rehabilitation work, or the timely completion
of rehabilitation 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 rehabilitation 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
materials 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 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 rehabilitation activities or to examine any books or records. Any
site visit, observation or examination by Bondowner Representative is solely for the purpose of protecting
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 rehabilitation 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 rehabilitation work is free from defective materials
or workmanship, or that the rehabilitation 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 rehabilitation 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
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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 Agreements, 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 construction, 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 Property, including without
limitation those contained in the Regulatory Agreements (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 conformance 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 Project in good
repair and good operating condition (reasonable wear and tear excepted) 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
Bondowner Representative, but shall be under no obligation to, contract for the 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 existing 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
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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
certain 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 repaid or reimbursed by Borrower at the Default Rate.
5.17 ALTERATIONS TO THE PROJECT AND REMOVAL OF EQUIPMENT. After
completion of rehabilitation 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 of 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 exclusion of interest on the Bonds from gross income for federal income
tax purposes.
5.18 REHABILITATION SCHEDULE. If, based on any rehabilitation progress schedule or
other materials submitted by Borrower, Bondowner Representative in its reasonable judgment determines
that the Project will not be completed by the Completion Date, Bondowner Representative may request
Borrower in writing to reschedule the work of rehabilitation 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 rehabilitation.
Within fifteen (15) days after receiving such a request from Bondowner Representative, Borrower must
deliver to Bondowner Representative a revised rehabilitation progress schedule showing completion of
the Project by the Completion Date. As a condition 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.
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, rehabilitation 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
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material modifications 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. INTENTIONALLY OMITTED
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 satisfactory 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, 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 rehabilitation 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. 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 Bondowner
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).
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 or rehabilitation, 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
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as owner-builder, Bondowner Representative may require that coverage include statutory workers’
compensation insurance.
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 time 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.
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 to do
business in the state in which the Property is located and must have an A.M. Best Company
financial 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) 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 at Wells Fargo
Bank, Community Lending and Investment, MAC #A0119-177, 333 Market Street, 17th Floor, San
Francisco, California 94105, Attention: Loan Administration Officer. 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.
(c) 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
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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 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.
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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 existing under the laws of the
State of 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 condition, 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 party, 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 the 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
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General 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 policy.
(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 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 conditions 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 necessary 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
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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 Loan 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.
(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 applied. 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 fair 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
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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 rehabilitation and occupancy of the Property and
Improvements 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
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 rehabilitation of the Improvements and
will conform to and comply with all governmental requirements and the Plans and Specifications.
(t) Americans With Disabilities Act Compliance. The rehabilitation 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
May 16, 2018 (“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
LIHTCs in the minimum amount of Five Hundred Seventy-Nine Thousand Four Hundred Eighty-
Seven and No/100th Dollars ($579,487.00) 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 reservations 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 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
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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 ///[$675,212.00]/// (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 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 Documents.
(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
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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
Regulatory Agreements 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 Agreements.
(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 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
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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 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;
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(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 rehabilitation of the Project was not commenced prior to the
sixtieth (60th) day preceding the adoption of Resolution No. 2018/76 of
the Issuer with respect to the Project on February 27, 2018, and no
obligation for which reimbursement will be sought from proceeds of the
Bonds relating to the rehabilitation 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 Agreements 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 each 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 AGREEMENTS. Borrower (and with respect to
Section 8.3(b) and (c), the Issuer) hereby covenants, represents and agrees as follows:
(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 adversely 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
Agreements, 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 Agreements will be binding upon all owners of the Project, and
as to the Borrower and the Issuer, to execute and record the Regulatory Agreements in the real
property records of Contra Costa County, California;
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(d) to notify any subsequent owner of the Project of the requirements and restrictions
contained in the Regulatory Agreements 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 Regulatory
Agreements; 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,
rehabilitation, development, operation and maintenance of the Project;
(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.
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 not 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
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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 long
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 ///[(i) that certain Phase I Environmental Site Assessment dated as of May 9,
2018, prepared by Harris and Lee Environmental Sciences, LLC (“Harris”) with respect to the
property located at 1945-1949 Cavallo Road, Antioch, California, and (ii) that certain Phase I
Environmental Site Assessment dated as of May 9, 2018, prepared by Harris with respect to the
property located as 35-107 and 104-106 West 20th Street, Antioch, California (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
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
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commercially reasonable amounts of such materials used in the ordinary course of rehabilitation
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 Property 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 rehabilitating 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 expense, all remedial action required by any Hazardous Materials Laws or any judgment,
consent decree, settlement or compromise in respect to any Hazardous Materials Claims.
9.4 INSPECTION BY BONDOWNER REPRESENTATIVE. Upon reasonable prior notice
to Borrower, Bondowner Representative, its employees and agents, may from time to time (whether
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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 DISPOSAL,
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 ISSUER 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 rehabilitation 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 (and 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 rehabilitation of
the Improvements, Borrower shall deliver to Bondowner Representative a report prepared by an
environmental consultant approved by Bondowner Representative and RETECHS, in form and substance
approved by Bondowner Representative and RETECHS, confirming the completion of the abatement
work with respect to the Regulated Building Materials and impacted soil at the Project in accordance with
the Environmental Reports and all applicable federal, state and local laws, rules and regulations.]///
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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 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 and 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 unconditionally 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 Bondowner 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.
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 Agreements, 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 pertaining to the sale, leasing or financing of the Property, and with all
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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 Bondowner 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 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 requirements 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 rehabilitation 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 employee 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 Agreement; 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
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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) (the “Property Tax
Exemption”). In addition, Borrower shall take, or cause managing General 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 it 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. 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 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 rehabilitation 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 Agreements, 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 Agreements, the Deed of Trust and the other Loan 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
Operating 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 rehabilitation and operation of the
Property, except as otherwise provided in the Loan Documents, and (b) except for payments of developer
fees permitted hereunder, 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
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indebtedness owed to any member, partner, or shareholder. After the Conversion Date, 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
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 under 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, on
the Closing Date and on the Conversion Date, if requested by Bondowner Representative, 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 other 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; provided, however that no such
instrument or action shall materially change the economic terms of the Loan Documents or expand the
obligations of Borrower hereunder.
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.
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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 with
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 relating 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;
(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 relating 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;
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(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 Agreements, the Deed of Trust, the Permitted
Encumbrances, the regulatory agreements and deeds of trust relating to the Subordinate Loans 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 Project, 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 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 Agreements) 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
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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 such consent shall be
void.
(d) Notwithstanding any other provision of this Loan Agreement or the other Loan
Documents to the contrary:
(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, 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.
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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 Property
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 prior written
consent, or (ii) dismiss or replace the Property Manager without Bondowner Representative’s 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 and Investor Limited 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 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 Borrower, 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 rehabilitation 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 the definition of “Capital
Contributions” in Section 1.1 of this Loan Agreement, provided however that this Section 11.21
shall not prevent the Borrower from accepting any Capital Contributions under the Partnership
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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 Agreements,
the City Regulatory Agreements, the County Regulatory Agreements, 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 Agreements, 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 without 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). Borrower 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 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;
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(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
Agreements 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 all 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 Federal 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 Property (including a certificate of Borrower’s accountant or
attorneys if requested by Bondowner 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 $579,487.00 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 LIHTC; (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
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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
further 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 consent of
Bondowner Representative, receive any other financing for the rehabilitation 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 Agreements 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 County Regulatory Agreements
and the City Regulatory Agreements, 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 portion 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 Agreements, (iii) to 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
restrictive 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 Agreements 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.
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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 (the “Tax and Insurance Impound”). 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 monthly 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 Agreements 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.
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 payment 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 3.17 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 Agreement
is a covenant for the use and benefit of the Bondholders and the Bondowner Representative, so long as
the Bonds shall remain “outstanding” (as defined in the Indenture); 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 hereunder, 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
authorized agents, shall have the right to examine and inspect during normal business hours, and
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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 Bondowner 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 PLANNING, DESIGN, ACQUISITION, INSTALLATION
OR REHABILITATION 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;
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(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 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
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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 Bonds 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 fully 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 other 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, defend 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 accountants’ costs, resulting from 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
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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 after 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 AGREEMENTS. Borrower shall not suffer or
permit to become effective any restrictions (including, without limitation, any “automatic” amendment of
the Regulatory Agreements 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 Agreements 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 Agreements. Without limiting the foregoing and notwithstanding
anything to the contrary in this Loan Agreement, the Borrower will not take, 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;
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(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 taking 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 Agreements;
(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 Agreements;
(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 that portion
of the Project in any manner which would violate the covenants set forth in this Loan Agreement
or the Regulatory Agreements;
(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 apply
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 INTENTIONALLY OMITTED.
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
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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 credited 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 control over such accounts (including, without limitation, the Replacement Reserve Account
referred to in the Replacement Reserve Agreement, and funds deposited therein).
11.47 OPERATING RESERVE.
(a) On or before the Conversion Date, Borrower shall deposit an amount not less
than $____________ (the "Operating Reserve") in an account or sub-account maintained by
Bondowner Representative (or another depository approved by Bondowner Representative) (the
"Operating Reserve Account"). Bondowner Representative shall have the sole right to make
withdrawals from such Operating Reserve Account. All investment earnings on funds in the
Operating Reserve Account shall be calculated by Bondowner Representative and added to and
become part of the Operating Deficit Reserve. If applicable law requires and provided that no
Default exists under any of the Loan Documents, Bondowner Representative shall pay to
Borrower the interest earned on the Operating Reserve once each year. Borrower hereby
assigns to Bondowner Representative, and grants to Bondowner Representative a first-priority
security interest in, all of Borrower’s right, title and interest in, to and under the Operating Reserve
Account and all deposits at any time contained therein and the proceeds thereof as additional
security for all of the Borrower’s obligations under this Loan Agreement and the other Loan
Documents. Any amounts deposited with Bondowner Representative under this Section 11.47
may be commingled with any other funds held by Bondowner Representative (provided that
Bondowner Representative shall maintain separate sub-accounts for such Operating Reserve)
and shall not operate to reduce the Loan, unless applied by Bondowner Representative for that
purpose under Section 11.47(c).
(b) Upon written request from the Borrower and satisfaction of the requirements set
forth herein, including all Operating Reserve Disbursement Conditions (as such term is defined
below), Bondowner Representative shall disburse, or authorize disbursement of, amounts from
the Operating Reserve Account, subject to the Bondowner Representative’s approval, to cover
any Operating Deficit (as such term is defined below) in connection with the Improvements until
all funds held in the Operating Reserve Account have been depleted. As used herein, an
"Operating Deficit" shall exist if and to the extent that cash flow from the Improvements is
insufficient to pay normal operating expenses and maintenance of the Improvements, Impositions
(as defined in Section 11.23) and regularly scheduled debt service of the Borrower; provided that
such normal operating expenses and maintenance, Impositions or debt service shall not include
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any items which are to be paid from any other reserves or accounts maintained pursuant to the
terms of this Loan Agreement or any subordinate loan documents.
(c) Upon the occurrence of a Default, Borrower shall immediately lose all of its rights
to receive disbursements from the Operating Reserve unless and until all amounts secured by
this Loan Agreement have been paid and the lien of this Loan Agreement has been released by
Bondowner Representative. Upon any such Default, Bondowner Representative may, in its sole
and absolute discretion, use the Operating Reserve (or any portion thereof) for any purpose,
including but not limited to (i) repayment of any indebtedness secured by this Loan Agreement,
including but not limited to principal prepayments and the prepayment premium applicable to
such full or partial prepayment (as applicable); provided, however, that such application of funds
shall not cure or be deemed to cure any default or Default; (ii) reimbursement of Bondowner
Representative for all losses and expenses (including, without limitation, reasonable legal fees)
suffered or incurred by Bondowner Representative as a result of such default or Default; or (iii)
payment of any amount expended in exercising (and exercise) all rights and remedies available
to Bondowner Representative at law or in equity or under this Loan Agreement or under any of
the other Loan Documents.
(d) Nothing in this Instrument shall obligate Bondowner Representative to apply all
or any portion of the Operating Reserve on account of any default or Default by Borrower or to
repayment of the indebtedness secured by this Loan Agreement or in any specific order of
priority.
(e) Any disbursement from the Operating Reserve Account to cover any Operating
Deficit is subject to Bondowner Representative’s prior approval, in Bondowner Representative’s
reasonable discretion. Bondowner Representative shall have no obligation to disburse, or
authorize disbursement of, any such amounts to Borrower unless all of the following conditions
(the "Operating Reserve Disbursement Conditions") have been satisfied as determined by
Bondowner Representative in its reasonable discretion (or have been waived in writing by
Bondowner Representative):
(i) Bondowner Representative shall have received a written request signed
by Borrower together with such documentation and information as
Bondowner Representative may require. Each such request shall be in
form and substance acceptable to Bondowner Representative and shall
include such items of information and documentation, including, without
limitation, invoices, canceled checks, lien waivers and other evidence as
Bondowner Representative may require to show that there currently is,
or potentially will be, an operating deficit, and that Borrower is otherwise
in compliance with all Loan Documents;
(ii) The Improvements shall not have been materially damaged;
(iii) The Property and Improvements or any interest therein shall not have
been materially affected by eminent domain or condemnation
proceedings; and
(iv) No default or Default shall have occurred and be continuing under any of
the Loan Documents.
(f) Borrower shall pay, within ten (10) days of request from Bondowner
Representative (i) all reasonable costs and expenses incurred by Bondowner Representative in
connection with collecting, holding and disbursing the Operating Reserve pursuant to this Section
11.47, and (ii) all reasonable fees, charges, costs and expenses incurred by Bondowner
Representative in connection with inspections made by Bondowner Representative or Bondowner
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Representative’s representatives in carrying out Bondowner Representative’s responsibility to
make certain determinations under this Section 11.47.
11.48 INTENTIONALLY OMITTED.
11.49 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
shall 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 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 Subordinate 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 any excess Subordinate Loan funds drawn by Borrower are not applied
to the rehabilitation of the Project, Borrower shall deposit such excess Subordinate Loan funds in the
Borrower’s Funds Account.
11.50 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.
11.51 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 condition or
use, and any and all other circumstances that might affect Borrower’s ability to pay or perform its
obligations under this Loan Agreement.
11.52 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.
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11.53 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 __________________________, 2023, 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.
11.54 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;
(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.
11.55 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.
11.56 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.
11.57 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.
11.58 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.
11.59 HUD DOCUMENTS. Borrower shall timely perform all obligations of Borrower 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
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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.
11.60 FINAL ALLOCATION OF TAX CREDITS. On or before the earlier of (a) the date on
which Investor Limited Partner makes the third installment of its Capital Contributions and (b) the
issuance of IRS Form 8609, Borrower shall deliver to Bondowner Representative evidence that a final
(unconditional) allocation of low-income housing tax credits has been made with respect to the Project,
which evidence shall consist of (i) copies of IRS Form 8609 for each building in the Project and a
recorded copy of the extended use agreement for the Project, executed by Borrower and TCAC, or (ii) a
final Project cost certification and evidence that all conditions imposed by TCAC for the issuance of IRS
Form 8609 have been satisfied.
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 eighty (180) days after the end of each of Borrower’s, Guarantor’s
and General Partner’s fiscal years, Borrower shall deliver to Bondowner Representative a current
financial statement (including, without limitation, an income and expense statement and balance sheet)
signed by an authorized representative of Borrower together with any other financial information
including, without limitation, annual financial statements, cash flow projections and operating statements
requested by Bondowner Representative, together with an annual certification by Borrower of compliance
with all applicable provisions of the Regulatory Agreements and Section 42 of the Code. If audited
financial information is prepared, Borrower shall deliver to Lender copies of that information within fifteen
(15) days of its final preparation. 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 financial information that Borrower may obtain, or Bondowner
Representative may reasonably request, on itself, Guarantor or General Partner, including but not limited
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. Except
as otherwise agreed to by Bondowner Representative, all such financial information shall be prepared in
accordance with generally accepted accounting principles consistently applied.
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
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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 IMPROVEMENTS. Beginning
with the first calendar month following the date of completion of rehabilitation 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 ownership, 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 ANNUAL BUDGET. After completion of construction of the Improvements, until such
time as the Note is paid in full, Borrower shall deliver to Lender within thirty (30) days after the end of
each fiscal year, an Annual Budget, including a Capital Expenditures budget, signed and dated by
Guarantor, and certified to be true, complete and correct by an authorized officer of Borrower, a copy of
the Annual Budget adopted by Borrower for the applicable year. "Annual Budget" shall mean an
operating and capital budget for the Property setting forth Borrower’s good faith estimate of projected
operating expenses and Capital Expenditures for each calendar year, including, without limitation, those
for maintenance, repairs, annual taxes, insurance, utilities and other annual expenses that are standard
and customary for properties similar to the Property. "Capital Expenditures" shall mean major repairs and
replacements to maintain or improve the Property, including, without limitation, structural repairs, roof
replacements, HVAC repairs and replacements, mechanical and plumbing repairs and replacements and
boiler repair and replacements.
12.7 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 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
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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
12.8 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 Contributions 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. Borrower's failure to pay when due any sums payable under the Note
or any of the other Loan Documents, or Borrower’s failure to deposit any Borrower’s Funds, as
and when required under this Loan Agreement; 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
evidencing 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) Rehabilitation; Use. (i) There is any material deviation in the work of
rehabilitation 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 rehabilitation 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
rehabilitation, 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
twenty (20) days without discharge, satisfaction or provision for payment being made by Borrower
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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 officers,
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
which 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 materially adverse impact upon the progress of rehabilitation 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
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(l) Loss of Priority. With the exception of the Regulatory Agreements 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 reconveyance of the Deed 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. Any such Hazardous Materials shall be “significant” for this
purpose if said Hazardous 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 the 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 standards and underwriting practices in effect at the time of making
such determination; or
(t) Conversion. Failure of Conversion to occur on or before the Mandatory
Conversion Date, as it may be extended pursuant to Section 3.6; 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 transaction or
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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 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 authority 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 Agreement
(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 Borrower 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 within 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, any 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, any
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) Permanent Financing. The failure to satisfy the Conversion Conditions on or
before the Mandatory Conversion Date (as may be extended pursuant to Section 3.6) or the
occurrence of a default or breach by Borrower, or failure to satisfy any of the terms, covenants or
conditions, of the Permanent Loan Documents for any reason whatsoever; or
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(cc) Failure to Fund Replacement Reserve Account. Failure by Borrower to fund the
Replacement Reserve Account in accordance with the requirements of the Replacement Reserve
Agreement; or
(dd) Failure to Fund Operating Reserve. Failure by Borrower to fund or replenish the
Operating Reserve in accordance with the requirements of this Loan Agreement; or
(ee) 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
(ff) Default Under Guaranty. The occurrence of a default under any 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
(gg) 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
(hh) Default Under Swap Agreement. Any “Default” or “Event of Default” occurs
under any Swap Agreement (as defined therein) between Borrower and Bondowner
Representative; or
(ii) Leases. A material default by Borrower occurs under any tenant lease for any
part of the Property and such default remains uncured beyond the cure period provided for in
such lease; or
(jj) 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 necessary 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
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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 terminate, 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.
(d) If Borrower becomes the subject of any insolvency proceeding described in
Sections 13.1(f) and (g), 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 rehabilitation 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 rehabilitation 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 rehabilitation 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 rehabilitation in its own name. All sums expended by Bondowner Representative in completing
rehabilitation 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.
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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 demand, 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 REHABILITATION. 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 rehabilitation 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 REHABILITATION. 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 rehabilitation to cease on any of the Improvements affected by
the condition of nonconformance. Borrower shall thereafter not allow any rehabilitation work, other than
corrective work, to be performed on any of the Improvements 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 applicable 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 law 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
Agreement and the other Loan Documents as provided in Section 15.43 of this Loan Agreement.
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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 right 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, the
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.
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 proceeding 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 discharged on or before
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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
Representative 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 obligations 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 in connection with the Bonds.
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
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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, instruments,
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 the 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 notices to be delivered
to Investor Limited Partner hereunder or under any other Loan Documents shall be sent to c/o Red Stone
Equity Partners, LLC, 1100 Superior Avenue, Suite 1640, Cleveland, Ohio 44114, Attention: General
Counsel, with a copy to Bocarsly Emden Cowan Esmail & Arndt LLP, 633 W. Fifth Street, 64th Floor, Los
Angeles, California 90071, Attention: Kyle B. Arndt, Esq. 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 Documents 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.
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
constitute 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
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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
Representative’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 costs 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
financial 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 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 obligations 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
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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 the
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 purchasing 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 amendments 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 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
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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 collectability therefor, are declared to be or become invalid,
illegal or unenforceable, Bondowner 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 “include(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 exhibits 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 obtain,
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.
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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 that 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 payment 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, subject 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 any kind with regard to the matter being approved.
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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 rehabilitation, 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.
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 the 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 interest 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 other 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 documents 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 INTENTIONALLY OMITTED.
15.40 INTENTIONALLY OMITTED.
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
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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.
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 hereunder or under any other Loan Document 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 for 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 by 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 applicable 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
reference 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 within 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
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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 §§ 644-645. 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.
(c) If a Dispute includes multiple claims, some of which are found not subject 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 Issuer 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 bear 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
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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 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]
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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 political subdivision and body corporate and politic
By: ______________________________________
John Kopchik
Director, Department of Conservation and
Development
Issuer’s Address:
County of Contra Costa
Department of Conservation and Development
30 Muir Road
Martinez, California 94553
Attention: Community Development Bond Program
Manager
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[Antioch - Signature Page to Loan Agreement]
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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# A0119-177
333 Market Street, 17th Floor
San Francisco, California 94105
Tel. No.: (415) 801-8528
Fax No.: (415) 801-8681
Attention: Emily Cafuir
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[Antioch - Signature Page to Loan Agreement]
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BORROWER:
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit corporation,
its sole Member/Manager
By: ________________________________
Daniel Sawislak
Executive Director
Borrower’s Address:
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
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EXHIBIT A - PROPERTY DESCRIPTION
Exhibit A to Loan Agreement between ANTIOCH RECAP, 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
______________, 2018.
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EXHIBIT B - DOCUMENTS
Exhibit B to Loan Agreement between ANTIOCH RECAP, 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
______________, 2018.
1. Loan Documents. The documents listed below, numbered 1.1 through 1.19, 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.
///[TO BE UPDATED]///
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 Pledge and Security Agreement of even date herewith executed by Borrower and
General Partner as debtor in favor of Bondowner Representative.
1.7 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).
1.8 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).
1.9 Uniform Commercial Code – National Financing Statements – form UCC 1 (Completion
Guaranty), dated of even date herewith showing Guarantor, 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.
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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 Payments of even date herewith
executed 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 Delivery Assurance Note
1.17 Delivery Assurance Deed of Trust
1.18 Disbursement Instruction Agreement executed by Borrower.
1.19 Agreement for Disbursement Prior to Recording and Amendment to Note of even date
herewith executed by Borrower and Bondowner Representative.
1.20 Copartnership, Joint Venture or Association Borrowing Certificate of even date herewith
executed by General Partner.
1.21 Corporate Resolution Authorizing Partnership Activity executed by the Secretary of
Guarantor.
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 Non-Recourse Indemnification
2.4 Hazardous Materials Indemnity Agreement (Unsecured - Borrower) dated of even date
herewith executed by Borrower in favor of Bondowner Representative.
2.5 Hazardous Materials Indemnity Agreement (Unsecured - Guarantor) dated of even date
herewith executed by Guarantor in favor of Bondowner Representative.
2.6 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.
2.7 Opinion of Bond Counsel.
2.8 Corporate Resolution Authorizing Execution of Guaranty and Indemnity and
Endorsement and Hypothecation of Property executed by Guarantor.
2.9 Any Swap Agreement between Borrower and Bondowner Representative.
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EXHIBIT C - FINANCIAL REQUIREMENT ANALYSIS
Exhibit C to Loan Agreement between ANTIOCH RECAP, 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
______________, 2018.
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.
[See Attached]
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EXHIBIT D - DISBURSEMENT PLAN
Exhibit D to Loan Agreement between ANTIOCH RECAP, 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
_________________, 2018.
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 warranty
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 4591285689 (the
“Account”).
1.5 No Disbursements shall be made from and after the Conversion Date.
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;
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2.4 architect’s, inspector’s and/or engineer’s periodic certifications of the percentage and/or
stage of rehabilitation 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;
2.6 evidence of Borrower’s compliance with the provisions of the Articles and 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 beneficiary
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 all conditions precedent to the
initial funding of the Permanent Loan, if any, have been satisfied 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 appropriately 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.
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Borrower acknowledges that this approval process may result in disbursement delays and
Borrower hereby consents to all such delays.
///[THE FOLLOWING PROVISIONS TO BE ADJUSTED UPON AGREEMENT OF COST
BREAKDOWN]///
3. Periodic Disbursement of General Contract Costs. The portion of the Disbursement
Budget totaling $______________.00 has been disbursed to or for the benefit or account of Borrower for
the payment of General Contract 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 in
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.
4. Periodic Disbursement of PV System Costs. The portion of the Disbursement Budget
totaling $______________.00 has been disbursed to or for the benefit or account of Borrower for the
payment of PV System 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 in 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 $______________.00, 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 4 through 6 hereof depending upon the
intended use of any such funds.
6. Periodic Disbursement of Insurance Fees and Costs. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Insurance Fees and Costs.
7. Periodic Disbursement of Architect & Engineering Fees and Costs. The portion of the
Disbursement Budget initially totaling $______________.00, shall be periodically disbursed into the
Account or to or for the benefit or account of Borrower for the payment of Architect & Engineering Fees
and Costs.
8. Periodic Disbursement of Environmental Report and Abatement Fees and Costs. The
portion of the Disbursement Budget initially totaling $______________.00, shall be periodically disbursed
into the Account or to or for the benefit or account of Borrower for the payment of Environmental Report
and Abatement Fees and Costs.
9. Periodic Disbursement of Appraisal Fees and Costs. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Appraisal Fees and Costs.
10. Periodic Disbursement of Lease-Up and Marketing Fees and Costs. The portion of the
Disbursement Budget initially totaling $______________.00, shall be periodically disbursed into the
Account or to or for the benefit or account of Borrower for the payment of Lease-Up and Marketing Fees
and Costs.
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11. Soft Costs Contingency Reserve. The portion of the Disbursement Budget allocated for
the payment of Soft Cost Contingency initially totaling $______________.00, 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.
12. Periodic Disbursement of Construction Period Interest. The portion of the Disbursement
Budget initially totaling $______________.00, allocated as to Construction Period Interest, 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 funds allocated to Construction Period Interest 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.
13. Periodic Disbursement of Real Estate Taxes. The portion of the Disbursement Budget
initially totaling $______________.00, shall be periodically disbursed into the Account or to or for the
benefit or account of Borrower for the payment of Real Estate Taxes.
14. Disbursement of Title and Recording Costs. The portion of the Disbursement Budget
initially totaling $______________.00 shall be deferred and shall not be paid from Loan proceeds. Title
and Recording Costs shall not be paid from any funding source for the Project until the repayment of the
Loan in full with interest and the satisfaction by Borrower of all obligations under the Loan Documents.
15. Periodic Disbursement of Developer Fees. The portion of the Disbursement Budget
initially totaling $______________.00, shall be periodically disbursed into the Account or to or for the
benefit or account of Borrower for the payment of Developer Fees. The remaining portion of the amount
set forth for Developer Fees in the Disbursement Budget initially totaling $______________.00 shall be
deferred and shall not be paid from Loan proceeds. Such deferred portion shall not be paid from any
funding source for the Project until the repayment of the Loan in full with interest and the satisfaction by
Borrower of all obligations under the Loan Documents.
16. Disbursement of Operating Reserve Costs. The portion of the Disbursement Budget
initially totaling $______________.00 shall be deferred and shall not be paid from Loan proceeds.
Operating Reserve Costs shall not be paid from any funding source for the Project until the repayment of
the Loan in full with interest and the satisfaction by Borrower of all obligations under the Loan Documents.
17. Periodic Disbursement of Tax Credit Application and Monitoring Fees. The portion of the
Disbursement Budget initially totaling $______________.00, shall be periodically disbursed into the
Account or to or for the benefit or account of Borrower for the payment of Tax Credit Application and
Monitoring Fees.
18. Periodic Disbursement of Construction Management and Oversight Fees and Costs. The
portion of the Disbursement Budget initially totaling $______________.00, shall be periodically disbursed
into the Account or to or for the benefit or account of Borrower for the payment of Construction
Management and Oversight Fees and Costs.
19. Periodic Disbursement of Legal Fees and Costs. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Legal Fees and Costs. The remaining portion of the
amount set forth for Legal Fees and Costs in the Disbursement Budget initially totaling
$______________.00 shall be deferred and shall not be paid from Loan proceeds. Such deferred portion
shall not be paid from any funding source for the Project until the repayment of the Loan in full with
interest and the satisfaction by Borrower of all obligations under the Loan Documents.
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20. Periodic Disbursement of Predevelopment Interest. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Predevelopment Interest.
21. Periodic Disbursement of Market Study Fees and Costs. The portion of the
Disbursement Budget initially totaling $______________.00, shall be periodically disbursed into the
Account or to or for the benefit or account of Borrower for the payment of Market Study Fees and Costs.
22. Periodic Disbursement of Impact Fees and Costs. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Impact Fees and Costs.
23. Periodic Disbursement of Permit Fees and Costs. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Permit Fees and Costs.
24. Periodic Disbursement of Furnishing Costs. The portion of the Disbursement Budget
initially totaling $______________.00, shall be periodically disbursed into the Account or to or for the
benefit or account of Borrower for the payment of Furnishing Costs.
25. Periodic Disbursement of Costs of Bond Issuance. The portion of the Disbursement
Budget initially totaling $______________.00, shall be periodically disbursed into the Account or to or for
the benefit or account of Borrower for the payment of Costs of Bond Issuance.
26. Disbursement of Audit Costs. The portion of the Disbursement Budget initially totaling
$______________.00 shall be deferred and shall not be paid from Loan proceeds. Audit Costs shall not
be paid from any funding source for the Project until the repayment of the Loan in full with interest and the
satisfaction by Borrower of all obligations under the Loan Documents.
27. Periodic Disbursement of Consultant Syndication Fees and Costs. The portion of the
Disbursement Budget initially totaling $______________.00, shall be periodically disbursed into the
Account or to or for the benefit or account of Borrower for the payment of Consultant Syndication Fees
and Costs.
October 16, 2018 BOS Minutes 599
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EXHIBIT E – INTENTIONALLY OMITTED
October 16, 2018 BOS Minutes 600
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EXHIBIT F – DISBURSEMENT INSTRUCTION AGREEMENT
Borrower: Antioch Recap, L.P.
Lender: Wells Fargo Bank, National Association
Loan: Loan number 1018337 made pursuant to that certain Loan Agreement dated as of
______________, 2018 among the County of Contra Costa, Borrower and Lender, as amended from time
to time.
Effective Date: ______________, 2018
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.
October 16, 2018 BOS Minutes 601
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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. Daniel Sawislak Authorized Signatory
2. Peter Poon Authorized Signatory
3. Carolyn _______________________ Authorized Signatory
4. Jessica _______________________ 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. North American 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 included in
any such Disbursement Request must be listed below.
Name on Deposit Account: Antioch Recap, L.P.
Wells Fargo Bank, N.A. Deposit Account Number: 4591285689
Further Credit Information/Instructions: Antioch Recap, L.P., Loan No. 1018337
October 16, 2018 BOS Minutes 602
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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. Daniel Sawislak Authorized Signatory
2. Peter Poon Authorized Signatory
3. Carolyn _________________________ Authorized Signatory
4. Jessica _________________________ 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 amount and applicable account. Each account included in
any such Disbursement Request must be listed below.
Name on Deposit Account: Antioch Recap, L.P.
Wells Fargo Bank, N.A. Deposit Account Number: 4591285689
Further Credit Information/Instructions: Loan No. 1018337
October 16, 2018 BOS Minutes 603
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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: ______________, 2018
BORROWER:
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit corporation,
its sole Member/Manager
By: ________________________________
Daniel Sawislak
Executive Director
October 16, 2018 BOS Minutes 604
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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 means 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 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 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,
October 16, 2018 BOS Minutes 605
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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.
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.
October 16, 2018 BOS Minutes 606
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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 ............................................................................................................. 14
2.2 NO WARRANTY BY ISSUER .................................................................................................... 14
2.3 PAYMENT OF COSTS OF ISSUANCE BY BORROWER ......................................................... 15
ARTICLE 3. THE LOAN ............................................................................................................................. 15
3.1 THE LOAN ................................................................................................................................. 15
3.2 LOAN DISBURSEMENTS .......................................................................................................... 15
3.3 LOAN REPAYMENT AND PAYMENT OF OTHER AMOUNTS ................................................. 15
3.4 ADDITIONAL CHARGES ........................................................................................................... 17
3.5 CONVERSION TO PERMANENT TERM .................................... Error! Bookmark not defined.
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. ................................................................................................................ 20
3.9 BORROWER’S OBLIGATIONS UNCONDITIONAL .................................................................. 20
3.10 ASSIGNMENT OF ISSUER’S RIGHTS ..................................................................................... 20
3.11 ADDITIONAL SECURITY INTEREST ........................................................................................ 20
3.12 LOAN FEES ............................................................................................................................... 20
3.13 LOAN DOCUMENTS ................................................................................................................. 20
3.14 EFFECTIVE DATE ..................................................................................................................... 21
3.15 CREDIT FOR PRINCIPAL PAYMENTS ..................................................................................... 21
3.16 FULL REPAYMENT AND RECONVEYANCE ........................................................................... 21
3.17 ISSUER FEE .............................................................................................................................. 21
ARTICLE 4. DISBURSEMENT OF LOAN FUNDS .................................................................................... 21
4.1 CONDITIONS PRECEDENT TO INITIAL DISBURSEMENTS OF PROCEEDS OF THE
BONDS ....................................................................................................................................... 24
4.2 CONDITION PRECEDENT TO ANY POST-CLOSING DISBURSEMENT ................................ 29
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 ........................................ 32
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 ............................................................................................... 34
5.4 ARCHITECT’S AGREEMENT .................................................................................................... 34
5.5 PLANS AND SPECIFICATIONS. ............................................................................................... 34
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5.6 CONTRACTOR AND CONSTRUCTION INFORMATION ......................................................... 35
5.7 PROHIBITED CONTRACTS ...................................................................................................... 35
5.8 LIENS AND STOP NOTICES ..................................................................................................... 35
5.9 CONSTRUCTION RESPONSIBILITIES .................................................................................... 35
5.10 ASSESSMENTS AND COMMUNITY FACILITIES DISTRICTS ................................................ 36
5.11 DELAY ........................................................................................................................................ 36
5.12 INSPECTIONS ........................................................................................................................... 36
5.13 SURVEY ..................................................................................................................................... 36
5.14 PAYMENT AND PERFORMANCE BONDS ............................................................................... 36
5.15 PROJECT, TITLE, OPERATION AND MAINTENANCE. ........................................................... 37
5.16 ADVANCES ................................................................................................................................ 38
5.17 ALTERATIONS TO THE PROJECT AND REMOVAL OF EQUIPMENT ................................... 38
5.18 CONSTRUCTION SCHEDULE .................................................................................................. 38
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 ......................................................................................................................... 39
ARTICLE 6. CONVERSION ......................................................................... Error! Bookmark not defined.
6.1 CONVERSION CONDITIONS ...................................................... Error! Bookmark not defined.
ARTICLE 7. INSURANCE .......................................................................................................................... 39
7.1 TITLE INSURANCE ................................................................................................................... 39
7.2 PROPERTY INSURANCE ......................................................................................................... 39
7.3 FLOOD HAZARD INSURANCE ................................................................................................. 39
7.4 LIABILITY INSURANCE ............................................................................................................. 39
7.5 OTHER COVERAGE ................................................................................................................. 40
7.6 OTHER INSURANCE ................................................................................................................. 40
7.7 GENERAL. ................................................................................................................................. 40
ARTICLE 8. REPRESENTATIONS AND WARRANTIES .......................................................................... 41
8.1 REPRESENTATIONS AND WARRANTIES OF THE ISSUER .................................................. 41
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 INTENTIONALLY OMITTED ...................................................................................................... 52
9.3 HAZARDOUS MATERIALS COVENANTS ................................................................................ 52
9.4 INSPECTION BY BONDOWNER REPRESENTATIVE ............................................................. 52
9.5 HAZARDOUS MATERIALS INDEMNITY ................................................................................... 53
9.6 LEGAL EFFECT OF SECTION .................................................................................................. 53
9.7 RADON TESTING ...................................................................................................................... 53
9.8 ASBESTOS AND LEAD BASED PAINT .................................................................................... 53
ARTICLE 10. SET ASIDE LETTERS ......................................................................................................... 54
10.1 SET ASIDE LETTERS ............................................................................................................... 54
ARTICLE 11. COVENANTS OF BORROWER .......................................................................................... 54
October 16, 2018 BOS Minutes 608
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11.1 COMPLIANCE WITH COVENANTS .......................................................................................... 54
11.2 EXPENSES ................................................................................................................................ 55
11.3 ERISA COMPLIANCE ................................................................................................................ 55
11.4 TAX CREDIT INVESTMENT ...................................................................................................... 55
11.5 OTHER INVESTMENT IN BORROWER ................................................................................... 56
11.6 TAX EXEMPTION ...................................................................................................................... 56
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 ................................................................................................................. 57
11.12 OPINION OF LEGAL COUNSEL ............................................................................................... 57
11.13 FURTHER ASSURANCES ........................................................................................................ 57
11.14 ASSIGNMENT ............................................................................................................................ 57
11.15 COMPLIANCE WITH LAWS ...................................................................................................... 58
11.16 MAINTENANCE AND SECURITY FOR PROJECT ................................................................... 58
11.17 NOTICE OF CERTAIN MATTERS ............................................................................................. 58
11.18 LIENS ON PROPERTY .............................................................................................................. 59
11.19 PROHIBITION OF TRANSFER. ................................................................................................. 59
11.20 MANAGEMENT OF PROPERTY ............................................................................................... 61
11.21 PARTNERSHIP DOCUMENTS; NO AMENDMENTS ................................................................ 61
11.22 RESTRICTIONS ......................................................................................................................... 62
11.23 TAXES AND IMPOSITIONS ...................................................................................................... 62
11.24 COMPLIANCE WITH LIHTC ...................................................................................................... 62
11.25 TAX CREDIT DOCUMENTATION ............................................................................................. 63
11.26 ADDITIONAL FINANCING ......................................................................................................... 64
11.27 PERMITS, LICENSES AND APPROVALS ................................................................................ 64
11.28 PUBLICITY ................................................................................................................................. 64
11.29 AFFORDABILITY COVENANTS ................................................................................................ 64
11.30 SUBORDINATION OF INDEBTEDNESS AND REGULATORY RESTRICTIONS .................... 64
11.31 IMPOUNDS FOR REAL PROPERTY TAXES ........................................................................... 65
11.32 NO SALE OF PROPERTY ......................................................................................................... 65
11.33 NONRESIDENTIAL LEASES ..................................................................................................... 65
11.34 LANDLORD OBLIGATIONS ...................................................................................................... 65
11.35 [RESERVED] .............................................................................................................................. 65
11.36 COVENANT FOR THE BENEFIT OF THE BONDHOLDERS ................................................... 65
11.37 INSPECTION AND ACCESS. .................................................................................................... 65
11.38 INDEMNITY. ............................................................................................................................... 66
11.39 TAX STATUS OF BONDS ......................................................................................................... 68
11.40 INCORPORATION OF TAX CERTIFICATE .............................................................................. 68
11.41 LOSS OF TAX EXCLUSION ...................................................................................................... 68
11.42 TAXES, REGULATORY COSTS AND RESERVE PERCENTAGES ........................................ 69
11.43 AMENDMENT OF REGULATORY AGREEMENT ..................................................................... 69
11.44 TAX COVENANTS ..................................................................................................................... 69
11.45 DEBT SERVICE COVERAGE RATIO. ......................................... Error! Bookmark not defined.
October 16, 2018 BOS Minutes 609
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11.46 OPERATING EXPENSES .......................................................................................................... 70
11.47 OPERATING RESERVES ............................................................ Error! Bookmark not defined.
11.48 SUBORDINATE LOANS ............................................................................................................ 73
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 .................................................................................... 74
11.53 NEGATIVE COVENANTS .......................................................................................................... 74
11.54 SWAP AGREEMENTS ............................................................................................................... 74
11.55 DERIVATIVE DOCUMENTS ...................................................................................................... 74
11.56 NOTICES FROM TCAC ............................................................................................................. 74
11.57 SANCTIONS .............................................................................................................................. 74
11.58 HUD DOCUMENTS ................................................................................................................... 74
ARTICLE 12. REPORTING COVENANTS ................................................................................................ 75
12.1 FINANCIAL INFORMATION ...................................................................................................... 75
12.2 BOOKS AND RECORDS ........................................................................................................... 75
12.3 REPORTS .................................................................................................................................. 75
12.4 LEASING REPORTS ................................................................................................................. 75
12.5 OPERATING STATEMENTS FOR PROPERTY AND IMPROVEMENTS ................................. 76
12.6 ADDITIONAL FINANCIAL INFORMATION ................................................................................ 76
12.7 NOTICE FROM INVESTOR LIMITED PARTNER ..................................................................... 77
ARTICLE 13. DEFAULTS AND REMEDIES .............................................................................................. 77
13.1 DEFAULT ................................................................................................................................... 77
13.2 ACCELERATION UPON DEFAULT; REMEDIES ...................................................................... 81
13.3 DISBURSEMENTS TO THIRD PARTIES .................................................................................. 83
13.4 BONDOWNER REPRESENTATIVE’S COMPLETION OF CONSTRUCTION .......................... 83
13.5 BONDOWNER REPRESENTATIVE’S CESSATION OF CONSTRUCTION ............................. 83
13.6 REPAYMENT OF FUNDS ADVANCED ..................................................................................... 83
13.7 RIGHTS CUMULATIVE, NO WAIVER ....................................................................................... 83
13.8 EXERCISE OF THE ISSUER’S REMEDIES BY BONDOWNER REPRESENTATIVE ............. 83
13.9 RIGHTS OF INVESTOR LIMITED PARTNER ........................................................................... 83
13.10 NONEXCLUSIVE REMEDIES ................................................................................................... 84
13.11 EFFECT OF WAIVER ................................................................................................................ 84
13.12 BONDOWNER REPRESENTATIVE MAY FILE PROOFS OF CLAIM ...................................... 84
13.13 RESTORATION OF POSITIONS ............................................................................................... 84
13.14 SUITS TO PROTECT THE PROJECT ....................................................................................... 84
ARTICLE 14. TERMINATION .................................................................................................................... 84
14.1 TERMINATION OF LOAN AGREEMENT; REQUIRED PREPAYMENT. .................................. 84
ARTICLE 15. MISCELLANEOUS PROVISIONS ....................................................................................... 85
15.1 INDEMNITY ................................................................................................................................ 85
15.2 FORM OF DOCUMENTS ........................................................................................................... 86
15.3 NO THIRD PARTIES BENEFITED ............................................................................................ 86
15.4 NOTICES ................................................................................................................................... 86
15.5 ATTORNEY-IN-FACT ................................................................................................................ 86
15.6 ACTIONS ................................................................................................................................... 86
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15.7 RIGHT OF CONTEST ................................................................................................................ 86
15.8 RELATIONSHIP OF PARTIES ................................................................................................... 86
15.9 DELAY OUTSIDE BONDOWNER REPRESENTATIVE’S CONTROL ...................................... 87
15.10 ATTORNEYS’ FEES AND EXPENSES; ENFORCEMENT ....................................................... 87
15.11 IN-HOUSE COUNSEL FEES ..................................................................................................... 87
15.12 IMMEDIATELY AVAILABLE FUNDS ......................................................................................... 87
15.13 BONDOWNER REPRESENTATIVE’S CONSENT .................................................................... 87
15.14 BOND SALES AND PARTICIPATIONS; DISCLOSURE OF INFORMATION ........................... 87
15.15 FANNIE MAE REQUIREMENTS ............................................................................................... 88
15.16 SIGNS ........................................................................................................................................ 88
15.17 BONDOWNER REPRESENTATIVE’S AGENTS ....................................................................... 88
15.18 TAX SERVICE ............................................................................................................................ 88
15.19 WAIVER OF RIGHT TO TRIAL BY JURY .................................................................................. 88
15.20 SEVERABILITY .......................................................................................................................... 89
15.21 HEIRS, SUCCESSORS AND ASSIGNS .................................................................................... 89
15.22 TIME ........................................................................................................................................... 89
15.23 HEADINGS ................................................................................................................................. 89
15.24 GOVERNING LAW; VENUE ...................................................................................................... 89
15.25 INTEGRATION; INTERPRETATION ......................................................................................... 89
15.26 USA PATRIOT ACT NOTICE. COMPLIANCE ........................................................................... 89
15.27 JOINT AND SEVERAL LIABILITY ............................................................................................. 89
15.28 COUNTERPARTS ...................................................................................................................... 90
15.29 NO WAIVER; CONSENTS ......................................................................................................... 90
15.30 AMENDMENTS, CHANGES AND MODIFICATIONS ................................................................ 90
15.31 LIMITATION ON ISSUER’S LIABILITY ...................................................................................... 90
15.32 PURPOSE AND EFFECT OF BONDOWNER REPRESENTATIVE APPROVAL ..................... 90
15.33 NO COMMITMENT TO INCREASE LOAN ................................................................................ 91
15.34 RELATIONSHIPS WITH OTHER BONDOWNER REPRESENTATIVE CUSTOMERS ............ 91
15.35 DISCLOSURE TO TITLE COMPANY ........................................................................................ 91
15.36 RESTRICTION ON PERSONAL PROPERTY ........................................................................... 91
15.37 LOAN COMMISSION ................................................................................................................. 91
15.38 COMPLIANCE WITH USURY LAWS ......................................................................................... 91
15.39 TERMINATED DOCUMENTS ...................................................... Error! Bookmark not defined.
15.40 LIMITS ON PERSONAL LIABILITY. ............................................ Error! Bookmark not defined.
15.41 REMOVAL OF GENERAL PARTNER ....................................................................................... 91
15.42 TRANSFER OF LIMITED PARTNER INTERESTS ................................................................... 92
15.43 CURE OF DEFAULTS ............................................................................................................... 92
15.44 EXTENDED USE AGREEMENT ................................................................................................ 92
15.45 AFFIRMATIVE ACTION ............................................................................................................. 92
15.46 JUDICIAL REFERENCE. ........................................................................................................... 92
15.47 ELECTRONIC TRANSMISSION OF DATA ............................................................................... 94
October 16, 2018 BOS Minutes 611
Loan No. 1018337
vi
4819-2072-9453v.3 0088288-000078
EXHIBIT A DESCRIPTION OF PROPERTY
EXHIBIT B DOCUMENTS
EXHIBIT C FINANCIAL REQUIREMENT ANALYSIS
EXHIBIT D DISBURSEMENT PLAN
EXHIBIT E INTENTIONALLY OMITTED
EXHIBIT F FUNDS TRANSFER DESIGNATION
October 16, 2018 BOS Minutes 612
Quint & Thimmig LLP 7/6/18
8/21/18
10/2/18
03007.43:J15230
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
and
ANTIOCH RECAP, L.P.
a California limited partnership
dated as of November 1, 2018
relating to:
$____________
County of Contra Costa
Multifamily Housing Revenue Bonds
(Antioch Scattered Site Renovation), Series 2018A
This Regulatory Agreement and Declaration of Restrictive Covenants pertains to the 24 units of
multifamily rental housing located at 1945 Cavallo Road in Antioch, California, known as
Pinecrest Apartments.
October 16, 2018 BOS Minutes 613
-i-
TABLE OF CONTENTS
Section 1. Definitions and Interpretation ........................................................................................................................ 2
Section 2. Representations, Covenants and Warranties of the Borrower .................................................................. 7
Section 3. Qualified Residential Rental Project .............................................................................................................. 9
Section 4. Low Income Tenants; Reporting Requirements ........................................................................................ 11
Section 5. Tax-Exempt Status of Issuer Notes .............................................................................................................. 13
Section 6. Requirements of the Act ................................................................................................................................ 13
Section 7. Requirements of the Issuer ........................................................................................................................... 15
Section 8. Modification of Covenants ............................................................................................................................ 17
Section 9. Indemnification; Other Payments ................................................................................................................ 18
Section 10. Consideration .................................................................................................................................................. 20
Section 11. Reliance ............................................................................................................................................................ 20
Section 12. Transfer of the Project .................................................................................................................................... 20
Section 13. Term ................................................................................................................................................................. 22
Section 14. Covenants to Run With the Land ................................................................................................................. 22
Section 15. Burden and Benefit ......................................................................................................................................... 23
Section 16. Uniformity; Common Plan ........................................................................................................................... 23
Section 17. Default; Enforcement ..................................................................................................................................... 23
Section 18. The Bank .......................................................................................................................................................... 24
Section 19. Recording and Filing ...................................................................................................................................... 25
Section 20. Payment of Fees .............................................................................................................................................. 25
Section 21. Governing Law; Venue .................................................................................................................................. 25
Section 22. Amendments; Waivers .................................................................................................................................. 26
Section 23. Notices ............................................................................................................................................................. 26
Section 24. Severability ...................................................................................................................................................... 27
Section 25. Multiple Counterparts ................................................................................................................................... 27
Section 26. Limitation on Liability ................................................................................................................................... 27
Section 27. Third-Party Beneficiaries ............................................................................................................................... 27
Section 28. Property Management ................................................................................................................................... 27
Section 29. Requirements of CDLAC .............................................................................................................................. 28
Section 30. Limited Liability of Issuer ............................................................................................................................. 30
Section 31. Conflict With Other Affordability Agreements ......................................................................................... 30
Section 32. Annual Reporting Covenant ......................................................................................................................... 30
EXHIBIT A DESCRIPTION OF REAL PROPERTY
EXHIBIT B FORM OF INCOME CERTIFICATION
EXHIBIT C FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT D FORM OF COMPLETION CERTIFICATE
EXHIBIT E CDLAC RESOLUTION NO. 18-033
EXHIBIT F CDLAC RESOLUTION NO 18-090
October 16, 2018 BOS Minutes 614
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (as supplemented and amended from time to time, this “Regulatory
Agreement”), dated as of November 1, 2018, 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 ANTIOCH RECAP, L.P., a California limited
partnership duly organized, validly existing and in good standing under the laws of the State of
California (together with any successor to its rights, duties and obligations hereunder and as
owner of the Project identified herein, the “Borrower”).
RECITALS:
WHEREAS, the Issuer has issued its County of Contra Costa Multifamily Housing
Revenue Bonds (Pinecrest Apartments) 2000 Series B (the “2000 Bonds”), the proceeds of which
were used to make a loan (the “Prior Loan”) to Pinecrest Affordable Housing, L.P., a California
limited partnership (the “Prior Owner”) to finance the costs of multifamily housing facilities
known as Pinecrest Apartments, including the facility (referred to below as the “Project”), on
the site described in Exhibit A hereto; and
WHEREAS, at the time of the issuance of the 2000 Bonds, the Issuer, the Prior Owner
and Wells Fargo Bank, National Association, as trustee for the 2000 Bonds, entered into a
Regulatory Agreement and Declaration of Restrictive Covenants, dated as of November 1, 2000
(the “Prior Regulatory Agreement”), imposing various requirements on the Project in order to
satisfy requirements of the Internal Revenue Code of 1986, as amended (the “Code”) and
provisions of the California Health and Safety Code applicable to the Project by reason of the
issuance of the 2000 Bonds and the use of a portion of the proceeds of the 2000 Bonds to finance
the Project; and
WHEREAS, the Issuer now proposes to enter into an indenture of trust, dated as of
November 1, 2018 (as supplemented and amended from time to time, the “Indenture”), between
the Issuer and Wells Fargo Bank, National Association, as bondowner representative (the
“Bondowner Representative”) pursuant to which the Issuer will issue, pursuant to Chapter 7 of
Part 5 of Division 31 of the California Health and Safety Code (the “Act”), its County of Contra
Costa Multifamily Housing Revenue Bonds (Antioch Scattered Site Renovation), Series 2018A in
the initial principal amount of $____________ (the “Bonds”); and
WHEREAS, the proceeds of the Bonds will be used to fund a loan (the “Loan”) to the
Borrower pursuant to the Loan Agreement, dated as of November 1, 2018, among the Issuer, the
Bondowner Representative and the Borrower (as supplemented and amended from time to
time, the “Loan Agreement”), to provide financing for the acquisition and rehabilitation by the
Borrower of 56 units of multifamily rental housing (collectively referred to in the Indenture as
the “Project” and in this Regulatory Agreement as the “Projects”) identified collectively as
Antioch Scattered Site Renovation, including (a) 24 units located at 1945 Cavallo Road in the
City of Antioch, California, currently known as Pinecrest Apartments, and (b) 32 units located
at 35, 45, 101, 103, 104, 105, 106 and 107 West 20th Street in the City of Antioch, California,
currently known as Terrace Glen Apartments; and
WHEREAS, in connection with the Loan and the financing of the Projects, the Issuer and
the Borrower will enter into two separate Regulatory Agreements and Declaration of Restrictive
October 16, 2018 BOS Minutes 615
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Covenants, each dated as of November 1, 2018, one with respect to Pinecrest Apartments, and
one with respect to Terrace Glen Apartments; and
WHEREAS, this is one of such agreements, is referred to herein as the “Agreement” or
the “Regulatory Agreement,” and pertains to the site described in Exhibit A hereto and the
units on such site (such units being referred to in this Regulatory Agreement as the “Project”);
and
WHEREAS, the other Regulatory Agreement and Declaration of Restrictive Covenants
that pertains to units comprising the Projects that are not to be located on the site described in
Exhibit A hereto is referred to herein as the “Other Regulatory Agreement,” and the units
situated on the site described in Exhibit A to the Other Regulatory Agreement are referred to
herein as the “Other Project;” and
WHEREAS, the Prior Owner will use proceeds of the sale of the Project and the proceeds
of the sale of certain other facilities to the Borrower to repay the Prior Loan made to it from the
proceeds of the 2000 Bonds, and thereby to redeem in whole the 2000 Bonds; and
WHEREAS, despite the redemption of the 2000 Bonds, the “Qualified Project Period,” as
defined in the Prior Regulatory Agreement, will continue until the Bonds are no longer
outstanding, as provided in clause (b) of the definition of such term in the Prior Regulatory
Agreement; and
WHEREAS, the Issuer has agreed that compliance by the Borrower with the provisions
of this Regulatory Agreement will fully satisfy compliance with the applicable provisions of the
Prior Regulatory Agreement that would otherwise survive the redemption in full of the 2000
Bonds, such that the Issuer has agreed to the termination of the Prior Regulatory Agreement;
and
WHEREAS, the Issuer has consented to the transfer of the Project to the Borrower
pursuant to the terms of Section 13 of the Prior Regulatory Agreement; and
WHEREAS, in order to assure the Issuer and the Bondowner Representative that interest
on the Bonds will be excluded from gross income for federal income tax purposes under Section
103 of the Code, to assure the Issuer and the owners of the 2000 Bonds that the interest on the
2000 Bonds will continue to be excluded from the gross income of the owners of the 2000 Bonds
for federal income tax purposes under the Code, and to satisfy the public purposes for which
the 2000 Bonds were issued and 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 and the units in the Other Project need to be established and
certain other requirements need to be met.
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 are hereby 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, or in the Indenture.
October 16, 2018 BOS Minutes 616
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“Administrator” means the Issuer or any administrator or program monitor appointed
by the Issuer to administer this Regulatory Agreement, and any successor administrator
appointed by the Issuer.
“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 Unit” 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 or County, as applicable, in which the
Project and the Other Project are located, as defined by the United States Department of
Housing and Urban Development.
“Available Units” means residential units in the Project that are actually occupied and
residential units in the Project that are vacant and have been occupied at least once after
becoming available for occupancy, provided that (a) a residential unit that is vacant on the later
of (i) the date the Project is acquired or (ii) the issue date of the Bonds is not an Available Unit
and does not become an Available Unit until it has been occupied for the first time after such
date, and (b) a residential unit that is not available for occupancy due to renovations is not an
Available Unit and does not become an Available Unit until it has been occupied for the first
time after the renovations are completed.
“CDLAC” means the California Debt Limit Allocation Committee or its successors.
“CDLAC Conditions” has the meaning given such term in Section 29(a).
“CDLAC Resolutions” means, collectively, Resolution No. 18-033 relating to the Projects
attached hereto as Exhibit E, adopted by CDLAC on May 16, 2018 and Resolution No. 18-____
relating to the Projects attached hereto as Exhibit F, adopted by CDLAC on September 19, 2018,
as such resolutions may be modified or amended from time to time.
“Certificate of Continuing Program Compliance” means the Certificate to be filed by the
Borrower with the Issuer pursuant to Section 4(f) hereof, which shall be substantially in the
form attached as Exhibit C hereto 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 Antioch, California.
“Closing Date” has the meaning given to such term in the Indenture.
“Completion Certificate” means the certificate of completion of the rehabilitation of the
Projects required to be delivered to the Issuer by the Borrower pursuant to Section 2(i) of this
October 16, 2018 BOS Minutes 617
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Regulatory Agreement, which shall be substantially in the form attached to this Regulatory
Agreement as Exhibit D.
“Completion Date” means the date of completion of the rehabilitation of the Projects, as
that date shall be certified as provided in Section 2(i) of this Regulatory Agreement.
“Compliance Period” means the period beginning on the first day of the Qualified
Project Period and ending on the later of the end of the Qualified Project Period or such later
date as set forth in Section 29(c) 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 focus.housingcompliance.org) 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.
“Gross Income” means the gross income of a person (together with the gross income of
all persons who intend to reside with such person in one residential unit) as calculated in the
manner prescribed in under section 8 of the Housing Act.
“Housing Law” or “Housing Act” means the United States Housing Act of 1937, as
amended, or its successor.
“Income Certification” means a Tenant Income Certification and a Tenant Income
Certification Questionnaire in the form attached as Exhibit B hereto or in such other comparable
form as may be provided by the Issuer to the Borrower, or as otherwise approved by the Issuer.
“Inducement Date” means June 5, 2018, being the date on which the Board of
Supervisors of the Issuer adopted Resolution No. 2018/189, expressing the Issuer’s intent to
issue the Bonds to provide financing for the Projects.
“Issuer Annual Fee” means: for the period from the Closing Date to but not including
November 1, 2019, an amount equal to one-eighth of one percent (1/8%) of the maximum
principal amount of the Bonds; and, thereafter, on each November 1 during the remainder of
the Compliance Period, commencing November 1, 2019, 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 a tenant occupying a Low Income Unit.
“Low Income Unit” means any Available Unit if the aggregate Gross Income of all
tenants therein does not exceed limits determined in a manner consistent with determinations
of “low-income families” under Section 8 of the Housing Act, provided that the percentage of
median gross income that qualifies as low income hereunder shall be sixty percent (60%) of
median gross income for the Area, with adjustments for family size. A unit occupied by one or
more students shall only constitute a Low Income Unit if such students meet the requirements
of Section 142(d)(2)(C) of the Code. The determination of an Available Unit’s status as a Low
October 16, 2018 BOS Minutes 618
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Income Unit shall be made by the Borrower upon commencement of each lease term with
respect to such unit, and annually thereafter, on the basis of an Income Certification executed by
each tenant.
“Manager” means a property manager meeting the requirements of Section 28 hereof.
Resources for Community Development is the initial Manager.
“Other Project” has the meaning given to such term in the Recitals to this Regulatory
Agreement.
“Other Regulatory Agreement” has the meaning given to such term in the Recitals to
this Regulatory Agreement.
“Project” means the rental housing development located on the site described in Exhibit
A hereto, consisting of those facilities, including a fee interest in the real property, structures,
buildings, fixtures or equipment situated thereon, as it may at any time exist, the rehabilitation
of which facilities is to be financed, in whole or in part, from the proceeds of the Loan 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 the facilities described
in the Loan Agreement. It is hereby acknowledged that the term “Project” when used in the
Loan Agreement, means the “Project” as defined herein together with the “Other Project,” as
defined herein.
“Projects” has the meaning given to such term in the Recitals to this Regulatory
Agreement.
“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 rehabilitation of the Projects 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 rehabilitation of the Projects shall not be a Qualified Project Cost; and
provided still further that if any portion of any of the Projects is being rehabilitated by an
Affiliated 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
rehabilitating the Projects (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 Projects, 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 rehabilitation of the
Projects or payments received by such Affiliated Party due to early completion of the
rehabilitation of the Projects; (ii) the costs are paid with respect to a qualified residential rental
project or projects 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 Closing Date, and (iv) if the Project
Costs were previously paid and are to be reimbursed with proceeds of the Loan or the Bonds,
such costs were (A) costs of issuance of the Issuer Note, (B) preliminary capital expenditures
(within the meaning of United States Treasury Regulations §1.139-2(f)(2)) with respect to the
Projects (such as architectural, engineering and soil testing services) incurred before
commencement of the rehabilitation of the Projects that do not exceed twenty percent (20%) of
October 16, 2018 BOS Minutes 619
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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 Projects that are reimbursed no later than eighteen
(18) months after the later of the date the expenditure was paid or the date the Projects are
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
rehabilitation of any office or commercial space located on a site on which the Project or one of
the Other Project is located.
“Qualified Project Period” means the period beginning on the Closing Date and ending
on the later of the following: (a) the date that is fifteen (15) years after the date on which at least
fifty percent (50%) of the units in the Projects are first occupied; (b) the first date on which no
Tax-Exempt private activity bonds with respect to the Projects are Outstanding; or (c) the date
on which any assistance provided with respect to any of the Projects under Section 8 of the
Housing Act terminates; provided, however, that if at least 10% of the residential units in the
Project are Available Units at all times within 60 days after the later of (1) the date the Project is
acquired by the Borrower, or (2) the issue date of the Bonds, then the Qualified Project Period
shall begin on the date one year after the issue date of the Bonds and end on the later of (A) the
date that is fifteen (15) years after such date or (B) the later of the dates specified in the
foregoing clauses (a), (b) and (c) above.
“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.
“Rental Payments” means the rental payments paid by the occupant of a unit, excluding
any supplemental rental assistance to the occupant from the State, the federal government, or
any other public agency, but including any mandatory fees or charges imposed on the occupant
by the Borrower as a condition of occupancy of the unit.
“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 or environmental tax, under the Code.
“Transfer” means the conveyance, assignment, sale or other disposition of all or any
portion of the Project; and shall also include, without limitation to the foregoing, the following:
(a) an installment sales agreement wherein Borrower agrees to sell the Project or any part
thereof for a price to be paid in installments; and (b) an agreement by the Borrower leasing all
or a substantial part of the Project to one or more persons or entities pursuant to a single or
related transactions.
“2000 Bonds” has the meaning given to such term in the first Recital to this Regulatory
Agreement.
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. This 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.
October 16, 2018 BOS Minutes 620
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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.
(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, this Regulatory Agreement or the Other 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, 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, the Bondowner Representative and the
Borrower, to comply fully with the Act, the Code and all applicable rules, rulings, policies,
procedures, Regulations 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.
(e) The acquisition by the Borrower of an interest in the sites on which the Project and
the Other Project are located and the commencement of the rehabilitation of the Projects
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 rehabilitation of the
Project and the Other Project and the full expenditure of the proceeds of the Loan. The Borrower
reasonably expects to complete the rehabilitation of the Projects and to expend the full
maximum principal amount of the Loan by November 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
October 16, 2018 BOS Minutes 621
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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) Notwithstanding the provisions of Section 5.18 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 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.
(i) As soon as practicable after the Completion Date of the Project and the Other Project,
the Borrower shall deliver to the Issuer and the Bondowner Representative a duly executed
Completion Certificate. Only one Completion Certificate shall be prepared and filed with
respect to this requirement and Section 2(i) of the Other Regulatory Agreement.
(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) The Borrower agrees to expend towards the rehabilitation of the Project and the
Other Project (such expenditures to constitute “rehabilitation expenditures” as defined in
Section 147(d) of the Code), within two (2) years of the Closing Date, an amount at least equal to
fifteen percent (15%) of the proceeds of the Loan used to acquire the buildings (and equipment)
comprising the Projects.
(l) Money on deposit in any fund or account in connection with the Bonds or the Loan,
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 the Loan 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) No portion of the proceeds 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
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principal business of which is the sale of alcoholic beverages for consumption off premises. No
proceeds of the Loan shall be used for an office unless the office is located on the premises of the
facilities constituting the Project or the Other 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 or the Other Project.
(o) In accordance with Section 147(b) of the Code, the average maturity of the Bonds
does not exceed 120% of the average reasonably expected remaining economic life of the
facilities being financed by the Bonds.
(p) The Borrower shall comply with all applicable requirements of Section 65863.10 of
the California Government Code pertaining to the Project, 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 pertaining to the Project.
(q) The Borrower shall pay all of the Issuance Costs.
(r) 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 and
the Loan Agreement relating to the Projects.
(s) The Borrower hereby represents and warrants that the Project is located entirely
within the City.
(t) The Borrower agrees to comply with the provisions of Section 5.18 of the Loan
Agreement, as in effect on the Closing Date.
(u) The Borrower acknowledges, represents and warrants that it understands the nature
and structure of the transactions contemplated by this Regulatory Agreement and the Other
Regulatory Agreement; that it is familiar with the provisions of all of the documents and
instruments relating to the Bonds and the Loan 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 the Project and the Other 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 “residential rental project”
(within the meaning of Section 142(d) of the Code) for a term equal to the Compliance 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 rehabilitated and operated for the purpose of providing
multifamily residential rental property. The Borrower will own, manage and operate
the Project as a project to provide multifamily residential rental property 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.
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(b) All of the dwelling units in the Project (except for not more than one unit set
aside for a resident manager or other administrative use) are similarly constructed units,
and each dwelling unit in the Project contains 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 or rented for a period of less than 30 consecutive days, or will ever be
used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house,
nursing home, hospital, sanitarium, rest home or trailer court or park; provided that the
use of certain units for tenant guests on an intermittent basis shall not be considered
transient use for purposes of this Regulatory Agreement.
(d) No part of the Project will at any time during the Compliance 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 Compliance Period (except that the Borrower may obtain final map approval
and the Final Subdivision Public Report from the California Department of Real Estate
and may file a condominium plan with the City).
(e) All of the Available Units in the Project will be available for rental during the
period beginning on the date hereof and ending on the termination of the Compliance
Period on a continuous, “first-come, first-served” basis to members of the general public,
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 a
resident manager or other administrative use, or (ii) to the extent that dwelling units are
required to be leased or rented in such a manner that they constitute Low Income Units
or otherwise as necessary to comply with Section 6(a), (b) and (c), (iii) to the extent
required under any “extended low-income housing commitment (an “Extended Use
Agreement”) applicable to the Project, (iv) to the extent required by the provisions of
any documents related to the provision of State or federal low income housing tax
credits for the Project, or (v) to the extent required under any of the Subordinate Loan
Documents (as defined in the Loan Agreement).
(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, 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
paragraph 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
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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.
(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 by
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
Regulations as applicable to the Project, 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 rehabilitate the Project to meet the requirements of Section 142(d) of
the Code and the applicable Regulations.
(k) 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 and the Other 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).
The Issuer hereby elects to have the Project and the Other Project meet the requirements
of Section 142(d)(1)(B) of the Code.
Section 4. Low Income Tenants; Reporting Requirements. Pursuant to the requirements
of the Code, the Borrower hereby represents, warrants and covenants as follows:
(a) During the Compliance Period, no less than forty percent (40%) of the total
number of completed units in the Project, and not less than forty percent (40%) of the
units in the Other Project, shall at all times be Low Income Units. For the purposes of
this paragraph (a), a vacant unit that was most recently a Low Income Unit is treated as
a Low Income Unit 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.
Notwithstanding the foregoing provisions of this Section 4(a), the Borrower shall
not be in default under such requirements so long as (i) the Borrower uses its best efforts
to comply with such requirements as soon as practicable following the Closing Date, and
(ii) with respect to the Project and the Other Project, any unit which becomes available
for rental following the Closing Date becomes a Low Income Unit as necessary to satisfy
the requirements of Section 4(a). In no event, however, shall the Borrower fail to comply
with the foregoing provisions of this Section 4(a) of this Regulatory Agreement by
October 1, 2019.
(b) No tenant qualifying as a Low Income Tenant upon initial occupancy shall be
denied continued occupancy of a unit in the Project or in the Other Project because, after
admission, the aggregate Gross Income of all tenants in the unit occupied by such Low
Income Tenant increases to exceed the qualifying limit for a Low Income Unit.
However, should the aggregate Gross Income of tenants in a Low Income Unit, as of the
most recent determination thereof, exceed one hundred forty percent (140%) of the
applicable income limit for a Low Income Unit occupied by the same number of tenants,
the next available unit of comparable or smaller size must be rented to (or held vacant
and available for immediate occupancy by) Low Income Tenant(s). The unit occupied
by such tenants whose aggregate Gross Income exceeds such applicable income limit
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shall continue to be treated as a Low Income Unit for purposes of the 40% requirement
of Section 4(a) hereof unless and until an Available Unit of comparable or smaller size is
rented to persons other than Low Income Tenants.
(c) For the Compliance Period, the Borrower will obtain, complete and maintain
on file Income Certifications for each Low Income Tenant, including (i) an Income
Certification dated immediately prior to the initial occupancy of such Low Income
Tenant in the unit and a second Income Certification dated one year after the Low-
Income Tenant’s initial move-in date, and (ii) thereafter, an annual Income Certification
with respect to each Low Income Tenant. In lieu of obtaining the annual Income
Certifications required by clause (ii) of the preceding sentence, the Borrower may, with
respect to any particular twelve-month period ending each February 1, deliver to the
Administrator no later than fifteen days after such date a certification that as of each
February 1, no residential unit in the Project was occupied within the preceding twelve
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 Income Certifications for tenants.
The Borrower will also provide such additional information as may be required in the
future by the Code, the State or the Issuer, 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 Income Certifications for Low Income Tenants
commencing or continuing occupation of a Low Income Unit shall be submitted to the
Administrator or the Issuer, as requested.
(d) The Borrower shall make a good faith effort to verify that the income
information provided by an applicant in an Income Certification 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.
(e) 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
Department of the Treasury or the Internal Revenue Service to inspect the books and
records of the Borrower pertaining to the Projects, including those records pertaining to
the occupancy of the Low Income Units.
(f) The Borrower will prepare and submit to the Administrator, on behalf of the
Issuer, not less than semi-annually, commencing not less than six months after the
Closing Date, a Certificate of Continuing Program Compliance executed by the
Borrower in substantially the form attached hereto as Exhibit C. During the Compliance
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 Projects, to
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the Secretary of the Treasury on or before March 31 of each year (or such other date as
may be required by the Code).
(g) For the Compliance Period, all tenant leases or rental agreements shall be
subordinate to this Regulatory Agreement and the Deed of Trust. 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 by such
tenant in the Income Certification; (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 Issuer or the Administrator on behalf of the
Issuer, and that the failure to provide accurate information in the Income Certification 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 statements made by such tenant in the Income
Certification and supporting information supplied by the Low Income Tenant in
determining qualification for occupancy of a 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) and that
if upon any such certification the aggregate Gross Income of tenants in such unit exceeds
the applicable income limit under Section 4(b), the unit occupied by such tenant may
cease to qualify as a Low Income Unit and such unit’s rent may be subject to increase.
For purposes of this Section 4, no unit occupied by a residential manager shall be treated
as a rental unit during the time of such occupation.
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 Issuer
(with a copy to the Borrower), in order to insure that the requirements and restrictions of
this Regulatory Agreement will be binding upon all owners of the Project, and the
requirements and restrictions of the Other Regulatory Agreement will be binding upon
all owners of the Other Project, including, but not limited to, the execution and
recordation of this Regulatory Agreement in the real property records of the County.
Section 6. Requirements of the Act. In addition to the other requirements set forth
herein, the Borrower hereby agrees that it shall comply with each of the requirements of the
Act, including the following:
(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
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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)).
(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.
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(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. Requirements of the Issuer. In addition to other requirements set forth herein
and to the extent not prohibited by the requirements set forth in Sections 4 through 6 hereof, the
Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this
Section 7, 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
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), (iv) or (v)), 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
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including November 1, 2019, and (ii) on each November 1, on and after November 1,
2019, 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, 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
Section 5.19 of the Loan Agreement.
(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.
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(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 and 6 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 7 shall be in effect for the Compliance Period.
Any of the foregoing requirements of the Issuer contained in this Section 7 may be
expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of
this Section 7 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 7 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 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, retroactively impose requirements upon the
ownership or operation of the Project or of the Other Project more restrictive than those
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imposed by this Regulatory Agreement, and if such requirements are applicable to the
Project and compliance therewith is necessary to maintain the validity of, or the Tax-
Exempt status of interest on the Bonds, 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 or of the Other 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, at its sole discretion, and the Borrower, and with the prior written consent of the
Bondowner Representative, 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 otherwise in accordance
with Section 22 hereof.
(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 in writing by Bond
Counsel) 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 without first notifying the Borrower or the Issuer, or both of them, as is
applicable, in writing 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 or the
Borrower.
Notwithstanding any other provision of this Regulatory Agreement, whenever an
opinion of 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 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; Other Payments. 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 officers, Supervisors,
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) 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:
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(i) the Bonds, the Indenture, the Loan Agreement, this Regulatory Agreement,
the Other Regulatory Agreement, the Assignment Agreement, the Supplemental
Agreement or the Tax Certificate and all documents related thereto, or the execution or
amendment hereof or thereof or in connection with transactions contemplated hereby or
thereby, including the issuance, sale, resale or remarketing of the Bonds;
(ii) any act or omission of the Borrower or any of its agents, contractors,
servants, employees or licensees in connection with the Loan, the Project or the Other
Project, the acquisition, rehabilitation or operation of the Project or the Other 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 and rehabilitation of, the Project or the Other Project or any part thereof;
(iii) any lien or charge upon payments by the Borrower to the Issuer and the
Bondowner Representative hereunder, under the Other Regulatory Agreement 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 or the Other Project;
(iv) any violation of any environmental law, rule or regulation with respect to,
or the release of any toxic substance from, the Project or the Other Project or any part
thereof;
(v) the defeasance and/or redemption, in whole or in part, of the 2000 Bonds or
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 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 document for
the Loan 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; or
(vii) any declaration of taxability of interest on the 2000 Bonds or on the Bonds,
or allegations (or regulatory inquiry) that interest on the 2000 Bonds or on the Bonds is
taxable for federal tax purposes;
except 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 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. In addition to the foregoing, the Borrower
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shall pay upon demand all of the fees and expenses paid or incurred by the Issuer in enforcing
the provisions hereof.
In addition thereto, the Borrower will pay upon demand all of the fees and expenses
paid or incurred by the Issuer in enforcing the provisions hereof.
The provisions of this Section 9 shall survive the final payment or defeasance of the
Bonds and the termination of this Regulatory Agreement; provided, however, the provisions of
this Section shall, in the case of the Issuer, survive the term of this Regulatory Agreement, but
only as to claims arising from events occurring during the term of this Regulatory Agreement.
Nothing contained in this Section 9 shall cause the obligation of the Borrower to pay
principal and interest on the Loan or amounts owing with respect to the Note to be a recourse
obligation of the Borrower.
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 Project and the Other Project, all for the purpose, among
others, of inducing the Borrower to acquire, rehabilitate, develop and operate the Project and
the Other Project. In consideration of the issuance of the Bonds by the Issuer, the Borrower has
entered into this Regulatory Agreement and the Other Regulatory Agreement and has agreed to
restrict the uses to which this Project and the Other Project can be put on the terms and
conditions set forth herein and therein.
Section 11. Reliance. The Issuer and the Borrower hereby recognize and agree that the
representations and covenants set forth herein and in the Other Regulatory Agreement may be
relied upon by all persons, including but not limited to the Administrator and the Bondowner
Representative, interested in the legality and validity of the Bonds, in the exemption from
California 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
Administrator may rely upon statements and certificates of the Low Income Tenants, and upon
audits of the books and records of the Borrower pertaining to the Project and the Other Project.
In addition, the Issuer 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 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 by the Borrower with respect to the occurrence or absence of a default.
Section 12. Transfer of the Project. For the Compliance Period, the Borrower shall not
Transfer the Project, in whole or in part, without the prior written consent of the Issuer, which
consent shall not be unreasonably withheld or delayed if the following conditions are satisfied:
(A) the receipt by the Issuer of evidence acceptable to the Issuer that (1) the Borrower shall not
be in default hereunder, under the Other Regulatory Agreement or under any of the other Loan
Documents in effect, or the transferee undertakes to cure any defaults of the Borrower to the
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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 transferee or its 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 governmental requirements applicable to such projects, or (b) the transferee agrees to
retain a Manager 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, or
another management company reasonably acceptable to the Issuer will manage, for at least one
year following such Transfer and, if applicable, during such period the transferring Borrower or
its management company will provide training to the transferee and its manager in the
responsibilities relating to the Low Income Units; and (4) the person or entity that is to acquire
the Project does not have pending against it, and does not have a history of significant and
material building code violations or 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 transferee of a document reasonably
acceptable to the Issuer with respect to the assumption of the Borrower’s obligations under this
Regulatory Agreement and the other Loan Documents in effect, including without limitation an
instrument of assumption hereof and thereof, and delivery to the Issuer of an opinion of such
transferee’s counsel to the effect that each such document and this Regulatory Agreement are
valid, binding and enforceable obligations of such transferee, subject to bankruptcy and other
standard limitations affecting creditor’s rights; (C) receipt by the Issuer of an opinion of Bond
Counsel to the effect that any such Transfer will not adversely affect the Tax-Exempt status of
interest on the Bonds; (D) receipt by the Issuer of all fees and/or expenses then currently due
and payable to the Issuer by the Borrower; (E) receipt by the Issuer of evidence of satisfaction of
compliance with the provisions of Section 29(d)(i) related to notice to CDLAC of transfer of the
Project; (F) the Other Project shall be transferred coterminously with the transfer of the Project,
to the same transferee; and (G) such other conditions are met as the Issuer may reasonably
impose.
It is hereby expressly stipulated and agreed that any Transfer 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. The written consent of the Issuer to any Transfer of the Project shall
constitute conclusive evidence that the Transfer is not in violation of this Section 12. 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 satisfy certain conditions or
obtain the prior written consent of such other party in order to Transfer the Project. Upon any
Transfer that complies with this Regulatory Agreement, the Borrower shall be fully released
from its obligations hereunder, but only to the extent such obligations have been fully assumed
in writing by the transferee of the Project.
The foregoing notwithstanding, the Project may be transferred pursuant to a foreclosure,
exercise of power of sale or deed in lieu of foreclosure or comparable conversion under the
Deed of Trust without the consent of the Issuer or compliance with the provisions of this
Section 12. The Issuer hereby approves the transfer of limited partnership interests in the
Borrower to affiliates of the investor limited partner of the Borrower, including, without
limitation, the transfer of partnership interests in the Borrower from the investor limited partner
and non-managing membership interests in the limited partner of Borrower.
For the Compliance Period, the Borrower shall not: (1) encumber any of the Project or
grant commercial leases of any part thereof, or permit the conveyance, transfer or encumbrance
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of any part of the Project, except for (A) encumbrances permitted under the Deed of Trust, or
(B) a Transfer in accordance with the terms of this Regulatory Agreement, in each case upon
receipt by the Issuer of an opinion of Bond Counsel to the effect that such action will not
adversely affect the Tax-Exempt status of interest on the Bonds (provided that such opinion will
not be required with respect to any encumbrance, lease or transfer relating to a commercial
operation or ancillary facility that will be available for tenant use and is customary to the
operation of multifamily housing developments similar to 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 demolished or removed is replaced with comparable property or such
demolition or removal is otherwise permitted by the Loan Agreement or the Deed of Trust; 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 Compliance
Period, it being expressly agreed and understood that the provisions hereof are intended to
survive the retirement of the Bonds and discharge of the Loan Agreement.
The terms of this Regulatory Agreement to the contrary notwithstanding, the
requirements of 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 or other casualty, seizure, requisition, foreclosure or transfer of title by 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 such provisions, or condemnation or a similar
event, but only if, within a reasonable period, either the Loan is repaid or amounts received as a
consequence of such event are used to provide a project that 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.
Notwithstanding any other provision of this Regulatory Agreement, this Regulatory
Agreement may be terminated upon agreement by the Issuer and the Borrower, with the
consent of CDLAC, upon receipt by the Issuer of an opinion of Bond Counsel to the effect that
such termination will not adversely affect the exclusion from gross income of interest on the
Bonds for federal income tax purposes and is otherwise permitted under the Act. 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 title to the Project; provided, however, that on the termination of this
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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 or in the Other Regulatory Agreement, and if such default remains
uncured for a period of 60 days after notice thereof shall have been given by the Issuer or the
Bondowner Representative (with a copy to the Issuer) to the Borrower, or for a period of 60
days from the date the Borrower should, with reasonable diligence, have discovered such
default, then the Issuer 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 60
days, such default shall not constitute an Event of Default hereunder so long as (i) the Borrower
institutes corrective action within said 60 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 60 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 and under the Other Regulatory Agreement within
shorter periods of time than are otherwise provided herein if necessary to insure compliance
with the Act or the Code.
Following the declaration of an Event of Default hereunder, the Issuer or the Bondowner
Representative, subject to the terms of the Loan Agreement, may 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 that may be unlawful or in violation of
the rights of the Issuer 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 and the Other 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; and
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(iv) with the consent of the Bondowner Representative, which consent shall not
be unreasonably withheld, declare a default under the Loan Agreement, as applicable,
and proceed with any remedies provided therein.
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 this
Regulatory Agreement 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.
The Bondowner Representative shall have the right, in accordance with this Section and
the provisions of the Loan Agreement, 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.
The Issuer and the Bondowner Representative hereby agree (i) that cure of any Event of
Default made or tendered by any partner of the Borrower shall be deemed to be a cure by the
Borrower and shall be accepted or rejected on the same basis as if made or tendered by the
Borrower, and (ii) that a copy of any notice delivered hereunder to the Borrower shall be
delivered to Borrower’s investor limited partner at its address set forth in the Indenture.
All reasonable fees, costs and expenses (including reasonable attorney’s fees) of the
Bondowner Representative and the Issuer incurred in taking any action pursuant to this Section
shall be the sole responsibility of the Borrower; provided, however, that in the event that any
action arises hereunder in which the Borrower and the Bondowner Representative are
adversaries, the prevailing party, if any, shall be entitled to recover legal fees and costs from the
other party.
Section 18. 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 and the Loan Agreement 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 the Bonds no longer 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.
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Section 19. Recording and Filing. (a) The Borrower shall cause this Regulatory
Agreement, the Other 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 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 reasonably necessary, in the opinion of Bond Counsel, 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 to the end that such transferee has notice of, and is bound by,
such restrictions, and, except in the case of a foreclosure or comparable involuntary conversion
of the Deed of Trust, whereby the Bondowner Representative becomes the owner of the Project,
to obtain the agreement from any transferee to abide by all requirements and restrictions of this
Regulatory Agreement.
Section 20. Payment of Fees. Notwithstanding any prepayment of the Loan and
discharge of the Loan Agreement, the Borrower shall continue to pay (or, to the extent allowed
under the Code, shall prepay the present value at such time of) the fees of the Issuer as
provided in this Section 20, unless such prepayment is made in connection with a refunding of
the Bonds.
The Borrower agrees to pay to the Issuer (i) the Issuer Issuance Fee, which shall be paid
on or before the Closing Date, (ii) the Issuer Annual Fee, which shall be payable commencing on
the Closing Date and annually on each November 1 thereafter, and continuing throughout the
Compliance Period, and (iii) within 30 days after receipt of request for payment thereof, all
reasonable out-of-pocket expenses of the Issuer (not including salaries and wages of Issuer
employees) related to the Bonds, the Loan, and the Projects and the financing thereof, including,
without limitation, legal fees and expenses incurred in connection with the interpretation,
performance, enforcement or amendment of any documents relating to the Projects, the Bonds,
the Loan or any of the Loan Documents. Only one Issuer Issuance Fee and only one Issuer
Annual Fee shall be payable with respect to the Project and the Other Project.
In the event that the Qualified Project Period terminates prior to the termination of the
Compliance Period (other than by reason of the issuance of refunding bonds), and provided
that the conditions of this Section are satisfied, the Borrower shall thereafter and for the
remainder of the Compliance Period pay to the Issuer annually in advance an amount equal to
$5,000. The full Issuer Annual Fee shall continue to be payable unless and until the Issuer has
confirmed receipt of all amounts then due and payable in arrears by the Borrower to the Issuer
in connection with the Loan, at which point the Issuer Annual Fee shall become effective.
If the Borrower fails to make payment of the Issuer Annual Fee for a period of two
consecutive years or more, the Issuer may, in its sole discretion, declare the total amount of the
Issuer Annual Fee through the end of the Compliance Period immediately due and payable,
such amount to be discounted at a rate equal to the then current market rate for U.S. Treasury
obligations of a maturity equal to the remaining term of the Compliance Period.
Section 21. Governing Law; Venue. This Regulatory Agreement shall be construed in
accordance with and governed by the laws of the State of California applicable to contracts
made and performed in the State of California. This Regulatory Agreement shall be enforceable
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in the State of California, and any action arising hereunder shall (unless waived by the Issuer in
writing) be filed and maintained in the Superior Court of California, County of Contra Costa.
Section 22. Amendments; Waivers. (a) Except as provided in Section 8(a) and 29(e)
hereof, this Regulatory Agreement may be amended only by a written instrument executed by
the parties hereto or their successors in title, and duly recorded in the real property records of
the County, and only upon (i) receipt by the Issuer 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 and (ii) the written consent of the Bondowner
Representative, who shall receive a copy of any such amendment.
(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 remains Tax-Exempt. The parties
requesting such amendment shall notify the other parties to this Regulatory Agreement of the
proposed amendment, with a copy of such proposed amendment to Bond Counsel and a
request that Bond Counsel render to the Issuer 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
specified in the Indenture, or at such other addresses as may be specified in writing by the
parties hereto. Unless otherwise specified by the Administrator, the address of the
Administrator is the same as the address of the Issuer.
Unless otherwise specified by CDLAC, the address of CDLAC is:
California Debt Limit Allocation Committee
915 Capitol Mall, Room 311
Sacramento, CA 95814
Attention: Executive Director
The Issuer, the Administrator, CDLAC and the Borrower 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;
provided that any telecopy or other electronic transmission received by any party after 4:00
p.m., local time of the receiving party, as evidenced by the time shown on such transmission,
shall be deemed to have been received the following Business Day. A copy of each notice of
default provided to the Borrower hereunder shall also be provided to the Bondowner
Representative at its addresses set forth in the Indenture.
The Borrower shall notify the Issuer and the Administrator in writing of any change to
the name of the Project or any change of name or address for the Borrower or the Manager. The
Borrower shall further notify CDLAC in writing of any event provided in Section 29(d) hereof.
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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. Limitation on Liability. Notwithstanding the foregoing or any other
provision or obligation to the contrary contained in this Regulatory Agreement, (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 and the amounts held in the funds and accounts
created under the Loan Agreement and the Indenture, or any rights of the Borrower under any
guarantees relating to the Projects, 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, nor any order or decree of specific
performance (other than pertaining to this Regulatory Agreement, any agreement pertaining to
the Project, the Other Project or any other agreement securing the Borrower’s obligations under
this Regulatory Agreement), shall be rendered against the Borrower, the assets of the Borrower
(other than the Borrower’s interest in the Project and the Other Project, this Regulatory
Agreement, amounts held in the funds and accounts created under the Loan Agreement, any
rights of the Borrower under the Loan Agreement or any other documents relating to the Loan
or any rights of the Borrower under any guarantees relating to the Project and the Other
Project), its partners, successors, transferees or assigns and each of their respective 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 and the Loan Agreement or
any agreement securing the obligations of the Borrower under this Regulatory Agreement, or
any judgment, order or decree rendered pursuant to any such action or proceeding, except to
the extent provided in the Loan Agreement.
Section 27. Third-Party Beneficiaries. The City, the Bondowner Representative, the
owners and the former owners of the 2000 Bonds and CDLAC are intended to be and shall each
be a third-party beneficiary of this Regulatory Agreement. The City and the owners and former
owners of the 2000 Bonds shall have the right (but not the obligation) to enforce, separately or
jointly with the Issuer and/or the Bondowner Representative, the terms of this Regulatory
Agreement and to pursue an action for specific performance or other available remedy at law or
in equity in accordance with Section 17 hereof. CDLAC 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 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.
Section 28. Property Management. The Borrower agrees that at all times the Project
shall be managed by a property manager (i) approved by the Issuer in its reasonable discretion
and (ii) who 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 governmental requirements applicable to such projects (the
“Manager”). The Borrower shall submit to the Issuer from time to time such information about
October 16, 2018 BOS Minutes 641
-28-
the background, experience and financial condition of any existing or proposed Manager as the
Issuer may reasonably require to determine whether such Manager meets the requirements for
a Manager set forth herein. The Issuer reserves the right to conduct periodic reviews of the
management practices and of the Manager to determine if the Project is being operated and
managed in accordance with the requirements and standards of this Agreement. The Borrower
agrees to cooperate with the Issuer in such reviews.
If the Issuer determines in its reasonable judgment that the Project is not being operated
and managed in accordance with one or more of the material requirements or standards of this
Agreement, the Issuer may deliver notice to the Borrower and the Bondowner Representative
requesting replacement of the Manager, which notice shall state clearly the reasons for such
request. The Borrower agrees that, upon receipt of such notice, it shall within 60 days submit to
the Issuer, with a copy to the Bondowner Representative, a proposal to engage a new Manager
meeting the requirements of this Section 28. Each of the Issuer and the Bondowner
Representative shall respond within 30 days to such proposal or such approval shall be deemed
given. Upon receipt of such consent or deemed consent, the Borrower shall within 60 days
terminate the existing Manager’s engagement and engage the new Manager. If such proposal is
denied by either the Issuer or the Bondowner Representative, the Borrower agrees that upon
receipt of notice of such denial, it shall within 60 days submit to the Issuer, with copies to the
Bondowner Representative, a proposal to engage another new Manager meeting the
requirements of this Section 28, subject to the Issuer’s and Bondowner Representative’s consent
or deemed consent pursuant to the terms hereof.
Notwithstanding any other provision of this Section 28 to the contrary, the Bondowner
Representative may at any time by written instruction to the Issuer and the Borrower deny the
Issuer’s request for a replacement Manager and direct that the existing Manager be retained.
Section 29. Requirements of CDLAC. In addition to other requirements set forth herein
and to the extent not prohibited by the requirements set forth in Sections 4 through 6 hereof, the
Borrower hereby agrees to comply with each of the requirements of CDLAC set forth in this
Section 29, as follows:
(a) The Borrower shall comply with the CDLAC Resolutions attached hereto as
Exhibit E and Exhibit F and the CDLAC Conditions set forth in Exhibits A thereto
(collectively, the “CDLAC Conditions”), which conditions are incorporated herein by
reference and made a part hereof. The Borrower will prepare and submit to the Issuer,
not later than February 1 of each year, until the rehabilitation of Project and the Other
Project is completed, and on February 1 every three years thereafter until the end of the
Compliance Period, a Certificate of Compliance 11 for Qualified Residential Rental
Projects, in substantially the form required or otherwise provided by CDLAC from time
to time, executed by an authorized representative of the Borrower. Such Certificate of
Compliance 11 for Qualified Residential Rental Projects shall be shall be prepared
pursuant to the terms of the CDLAC Conditions. Additionally, the Borrower will
prepare and submit to the Issuer, a Certificate of Completion, in substantially the form
required or otherwise provided by CDLAC, executed by an authorized representative of
the Borrower certifying among other things to the substantial completion of the Project
and the Other Project. Compliance with the terms of the CDLAC Conditions not
contained within this Regulatory Agreement, but referred to in the CDLAC Conditions
are the responsibility of the Borrower to report to the Issuer.
(b) The Borrower acknowledges that the Issuer and the Administrator will
monitor or cause to be monitored the Borrower’s compliance with the terms of the
CDLAC Conditions. The Borrower acknowledges that the Issuer will prepare and
October 16, 2018 BOS Minutes 642
-29-
submit to CDLAC, not later than March 1 of each year until the rehabilitation of the
Projects has been completed, and on March 1 of every three years thereafter until the
end of the Compliance Period, a Self-Certification Certificate in the form provided by
CDLAC. The Borrower will cooperate fully with the Issuer in connection with such
monitoring and reporting requirements.
(c) Except as otherwise provided in Section 13 of this Regulatory Agreement,
this Regulatory Agreement shall terminate on the date 55 years after the date on which
at least fifty percent (50%) of the units in the Project are first occupied or the
commencement of the Qualified Project Period, whichever is earlier.
(d) The Borrower shall notify CDLAC in writing of: (i) any change in ownership
of the Project, (ii) any change in the issuer of the Bonds, (iii) any change in the name of
the Project or the Manager; (iv) any material default under the Indenture, the Loan
Agreement, the Other Regulatory Agreement or this Regulatory Agreement, including,
but not limited to, such defaults associated with the Tax-Exempt status of the Bonds,
and the income and rental requirements as provided in Sections 4 and 6 hereof and the
CDLAC Conditions; or (v) termination of this Regulatory Agreement.
(e) CDLAC shall have the right, but not the obligation, to deliver revised
CDLAC Conditions to the Borrower after the Closing Date at any time that are not more
restrictive than the original CDLAC Conditions; provided however, that, with the prior
written consent of the Bondowner Representative, which will not be unreasonably
withheld: (i) any changes in the terms and conditions of such revised CDLAC
Conditions prior to the recordation against the Project in the real property records of the
County of a regulatory agreement between the Borrower and the California Tax Credit
Allocation Committee (“TCAC Regulatory Agreement”) shall be limited to such changes
as are necessary to correct any factual errors or to otherwise conform the CDLAC
Conditions to any change in facts or circumstances applicable to the Borrower or the
Project; and (ii) after recordation of the TCAC Regulatory Agreement, any changes in
the terms and conditions of such revised CDLAC Conditions shall be limited to such
changes as are necessary to conform Items 1, 6, 7, 10, 11, 12, 14, 15, 16, 18 through 26 and
37 of Exhibits A to the CDLAC Resolutions to any change in terms and conditions
requested by the Borrower and approved by CDLAC. The Borrower shall record or
cause to be recorded in the real property records of the County an amendment to this
Regulatory Agreement containing such revised CDLAC Conditions, executed by the
parties hereto or their successor in title and pay any expenses in connection therewith.
The Borrower shall provide CDLAC with a copy of that recorded amendment reflecting
the revised CDLAC Conditions.
Any of the foregoing requirements of the CDLAC contained in this Section 29 may be
expressly waived by CDLAC, in its sole discretion, in writing, but (i) no waiver by CDLAC of
any requirement of this Section 29 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 or the Code 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 29 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, the Code or any other state or federal law.
October 16, 2018 BOS Minutes 643
-30-
Section 30. Limited Liability of Issuer. 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. Notwithstanding any
provision in this Regulatory Agreement to the contrary, in the event of any conflict between the
provisions of this Regulatory Agreement and any other agreement that imposes affordability
requirements on the Project, including those referenced in Section 3(e) hereof, the provisions
providing for the most affordable units, with the most affordability, in the Project shall prevail,
so long as at all times the requirements of Section 2, 3, 4, 6, 7 and 29 of this Regulatory
Agreement are in any event satisfied. Notwithstanding the foregoing, a breach or default under
any agreement referenced in Section 3(e) hereof shall not, in itself, constitute a breach or a
default under this Regulatory Agreement.
Section 32. Annual Reporting Covenant. No later than January 31 of each calendar year
(commencing January 31, 2019), the Borrower, on behalf of the Issuer, agrees to provide to the
California Debt and Investment Advisory Commission, by any method approved by the
California Debt and Investment Advisory Commission, with a copy to the Issuer, the annual
report information required by section 8855(k)(1) of the California Government Code with
respect to the Bonds. This covenant shall remain in effect until the later of the date (a) the
Bonds are no longer outstanding or (b) the proceeds of the Bonds have been fully spent.
October 16, 2018 BOS Minutes 644
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
By:
John Kopchik,
Director, Department of Conservation
and Development
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its sole Member/Manager
By:
Daniel Sawislak,
Executive Director
03007.43:J15230
October 16, 2018 BOS Minutes 645
NOTARY ACKNOWLEDGMENT
State of California
ss.
County of
On , before me, , Notary Public
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 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.
October 16, 2018 BOS Minutes 646
NOTARY ACKNOWLEDGMENT
State of California
ss.
County of
On , before me, , Notary Public
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 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.
October 16, 2018 BOS Minutes 647
A-1
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANTIOCH,
COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
A PORTION OF THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 19 TOWNSHIP 2
NORTH, RANGE 2 EAST, MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING ON THE NORTH LINE OF THE PARCEL OF LAND DESCRIBED IN THE DEED
FROM TIMOTHY F. BROWN, SR. TO TIMOTHY F. BROWN. JR., RECORDED OCTOBER 2, 1956,
IN BOOK 2854 OF OFFICIAL RECORDS, PAGE 527, DISTANT THEREON EAST, 263 FEET FROM
THE NORTHWEST CORNER THEREOF, SAID POINT OF BEGINNING ALSO BEING THE
NORTHWEST CORNER OF THE PARCEL OF LAND DESCRIBED IN THE DEED FROM
TIMOTHY BROWN, SR., A WIDOWER, TO TIMOTHY BROWN, JR., RECORDED APRIL 14, 1955
IN BOOK 2515, OFFICIAL RECORDS, PAGE 137; THENCE FROM SAID POINT OF BEGINNING
ALONG THE EXTERIOR LINES OF SAID BROWN PARCEL (2854 OR 527) AS FOLLOWS; WEST.
263 FEET; SOUTH 110 FEET AND EAST 263 FEET TO THE SOUTHWEST CORNER OF SAID
BROWN PARCEL (2515 OR 137); THENCE NORTH ALONG THE WEST LINE OF SAID PARCEL
(2515 OR 137); 110 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM:
1. THE INTEREST OF CONTRA COSTA COUNTY IN THE WEST 20 FEET THEREOF, AS
DESCRIBED IN THE DEED RECORDED FEBRUARY 15, 1938, IN BOOK 453 OF OFFICIAL
RECORDS, PAGE 382.
2. THE INTEREST OF THE CITY OF ANTIOCH IN THE EAST 10 FEET OF THE WEST 30 FEET
THEREOF, "FOR THE PURPOSE OF A PUBLIC STREET OR HIGHWAY” AS DESCRIBED IN THE
DEED RECORDED OCTOBER 5, 1951, IN BOOK 1832 OF OFFICIAL RECORDS, PAGE 262.
Assessors Parcel No.: 068-061-024
October 16, 2018 BOS Minutes 648
B-1
EXHIBIT B
FORM OF INCOME CERTIFICATION
TENANT INCOME CERTIFICATION
Initial Certification 1st Recertification Other:
Effective Date:
Move-in Date:
(YYYY-MM-DD)
PART I - DEVELOPMENT DATA
Property Name: Pinecrest Apartments County: Contra Costa BIN #:
Address: 1945 Cavallo Road, Antioch, CA Unit Number: # Bedrooms:
PART II. HOUSEHOLD COMPOSITION
Vacant
HH
Mbr #
Last Name
First Name
Middle
Initial
Relationship to
Head
of Household
Date of Birth
(YYYY/MM//D
D)
F/T
Student
(Y or N)
Last 4 digits of
Social Security
#
1 HEAD
2
3
4
5
6
7
PART III. GROSS ANNUAL INCOME (USE ANNUAL AMOUNTS)
HH
Mbr #
(A)
Employment or Wages
(B)
Soc. Security/Pensions
(C)
Public Assistance
(D)
Other Income
TOTALS $ $ $ $
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 Passbook Rate
If over $5000 $ X 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)] $
Effective Date of Move-in Income Certification:
Household Size at Move-in Certification:
October 16, 2018 BOS Minutes 649
B-2
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)
October 16, 2018 BOS Minutes 650
B-3
PART V. DETERMINATION OF INCOME ELIGIBILITY
RECERTIFICATION ONLY:
TOTAL ANNUAL HOUSEHOLD
INCOME FROM ALL SOURCES:
From item (L) on page 1
$
Unit Meets Income
Restriction at:
60% 50%
Current Income Limit x 140%:
$
Current Income Limit per Family Size:
$
40% 30%
%
Household Income exceeds 140%
at recertification:
Yes No
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 non-optional charges)
$
Unit Meets Rent Restriction at:
60% 50% 40% 30% %
Maximum Rent Limit for this unit:
$
PART VII. STUDENT STATUS
*Student Explanation:
ARE ALL OCCUPANTS FULL TIME STUDENTS? If yes, Enter student explanation* 1 AFDC / TANF Assistance
(also attach documentation) 2 Job Training Program yes no 3 Single Parent/Dependent Child
4 Married/Joint Return
Enter 1-5 5 Former Foster Care
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.
October 16, 2018 BOS Minutes 651
B-4
SIGNATURE OF OWNER/REPRESENTATIVE
Based on the representations herein and upon the proof 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
October 16, 2018 BOS Minutes 652
B-5
INSTRUCTIONS FOR COMPLETING
TENANT INCOME CERTIFICATION
This form is to be completed by the owner or an authorized representative.
Part I - Project 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. (YYYY-MM-DD)
*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. (YYYY-MM-DD)
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
*Vacant Unit
Enter the number of bedrooms in the unit.
Check if unit was vacant on December 31 of requesting year.
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 following
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 last four digits of social security number or alien registration number for each occupant.
If tenant does not have a Social Security Number (SSN) or alien registration number, please enter the numerical birth month and
last two digits of birth year (e.g. birthday January 1, 1970, enter “0170”). If tenant has no SSN number or date of birth, please enter
the last 4 digits of the BIN.
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.
October 16, 2018 BOS Minutes 653
B-6
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 each
respective household member number from Part II. Include anticipated income only if documentation exists verifying pending
employment. If any adult states zero-income, please note “zero” in the columns of Part III.
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.
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 complete 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)
Row (L)
*Effective Date of
Income
Certification
*Household Size
at
Certification
Enter the greater of the total in Column (I) or (J)
Total Annual Household Income From all Sources Add (E) and (K) and enter the total
Enter the effective date of the income certification corresponding to the total annual
household income entered in Box L. If annual income certification is not required, this may
be different from the effective date listed in Part I.
Enter the number of tenants corresponding to the total annual household income entered in
Box L. If annual income certification is not required, this may be different from the number
of tenants listed in Part II.
October 16, 2018 BOS Minutes 654
B-7
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
Current Income Limit x 140%
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.
For recertifications only. Multiply the Current Maximum Move-in Income Limit by
140% and enter the total. 140% is based on the Federal Set-Aside of 20/50 or 40/60,
as elected by the owner for the property, not deeper targeting elections of 30%,
40%, 45%, 50%, etc. 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.
*Units Meets Income Restriction at
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.
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.
October 16, 2018 BOS Minutes 655
B-8
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 execution 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.
PART IX. SUPPLEMENTAL INFORMATION
Tenant Demographic Profile Complete for each member of the household, including minors, for move-in. Use
codes listed on supplemental form for Race, Ethnicity, and Disability Status.
Resident/Applicant Initials All tenants who wish not to furnish supplemental information should initial this
section. Parent/guardian may complete and initial for minor child(ren).
* Please note areas with asterisks are new or have been modified. Please ensure to note the changes or formats now being requested.
October 16, 2018 BOS Minutes 656
B-9
TENANT INCOME CERTIFICATION QUESTIONNAIRE
Name: Telephone Number:
_______________________________________________________ ( )
Initial Certification BIN #
Re-certification
Other Unit #
INCOME INFORMATION
Yes No MONTHLY GROSS INCOME
I am self employed. (List nature of self employment) (use net income from business)
$
I 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 receive cash contributions of gifts including rent or utility payments, on an ongoing
basis from persons not living with me.
$
I receive unemployment benefits. $
I receive Veteran’s Administration, GI Bill, or National Guard/Military
benefits/income.
$
I 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 receive Supplemental Security Income (SSI). $
I receive disability or death benefits other than Social Security.
$
I receive Public Assistance Income (examples: TANF, AFDC) $
I am entitled to receive child support payments.
I am currently receiving child support payments.
If yes, from how many persons do you receive support? ________
I am currently making efforts to collect child support owed to me. List efforts being
made to collect child support:
$
$
I receive alimony/spousal support payments $
I receive periodic payments from trusts, annuities, inheritance, retirement funds or
pensions, insurance policies, or lottery winnings.
If yes, list sources:
1)_____________________________________
2)_____________________________________
$
$
I receive income from real or personal property. (use net earned income)
$
Student financial aid (public or private, not including student loans)
Subtract cost of tuition from Aid received
$
October 16, 2018 BOS Minutes 657
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Asset information
YES NO INTEREST RATE CASH VALUE
I have a checking account(s).
If yes, list bank(s)
1)
2)
%
%
$
$
I have a savings account(s)
If yes, list bank(s)
1)
2)
%
%
$
$
I have a revocable trust(s)
If yes, list bank(s)
1)
%
$
I own real estate.
If yes, provide description:
$
I own stocks, bonds, or Treasury Bills
If yes, list sources/bank names
1)
2)
3)
%
%
%
$
$
$
I have Certificates of Deposit (CD) or Money Market Account(s).
If yes, list sources/bank names
1)
2)
3)
%
%
%
$
$
$
I have an IRA/Lump Sum Pension/Keogh Account/401K.
If yes, list bank(s)
1)
2)
%
%
$
$
I have a whole life insurance policy.
If yes, how many policies
$
I have cash on hand.
$
I 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)
$
$
October 16, 2018 BOS Minutes 658
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STUDENT STATUS
YES NO
Does the household consist of all persons who are full-time students (Examples: College/University, trade school,
etc.)?
Does the household consist of all persons who have been a full-time student in the previous 5 months?
Does your household anticipate becoming an all full-time student household in the next 12 months?
If you answered yes to any of the previous three questions are you:
• Receiving assistance under Title IV of the Social Security Act (AFDC/TANF/Cal Works - not SSA/SSI)
• Enrolled in a job training program receiving assistance through the Job Training Participation Act (JTPA) or
other similar program
• Married and filing (or are entitled to file) a joint tax return
• Single parent with a dependent child or children and neither you nor your child(ren) are dependent of
another individual
• Previously enrolled in the Foster Care program (age 18-24)
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) DATE
October 16, 2018 BOS Minutes 659
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EXHIBIT C
FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
ANTIOCH SCATTERED SITE RENOVATION
Witnesseth that on this ____ day of ____________, 20__, the undersigned, having
borrowed certain funds from the County of Contra Costa (the “Issuer”) for the purpose of
financing the above-listed multifamily rental housing facilities does hereby certify that:
A. During the preceding twelve-months (i) each of the Projects was continually in
compliance with the Regulatory Agreements, and (ii) ____% of the units in each of the Projects
were occupied by Low Income Tenants (minimum of 40%).
B. Set forth below is certain information regarding occupancy of the Projects and as of
the date hereof.
Pinecrest
Apartments
Terrace Glen
Apartments
1. Total Units: 24 32
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 respective Project.
D. Select appropriate certification: [No unremedied default has occurred under any of
the Regulatory Agreements, the Note, Loan Agreement, the Supplemental 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.
October 16, 2018 BOS Minutes 660
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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 November 1, 2018, between the Issuer and Antioch Recap, L.P., a
California limited partnership.
Date: ANTIOCH RECAP, L.P., a California limited
partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its sole Member/Manager
By:
Daniel Sawislak,
Executive Director
October 16, 2018 BOS Minutes 661
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EXHIBIT D
FORM OF COMPLETION CERTIFICATE
The undersigned hereby certifies that the acquisition and rehabilitation of the Project
and of the Other Project was substantially completed as of ____________.
The undersigned hereby further 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;
(3) at least ninety-five percent (95%) 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; and
(4) the Borrower is in compliance with the provisions of the Regulatory Agreements and
the Loan Agreement.
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
November 1, 2018, between Antioch Recap, L.P., a California limited partnership and the
County of Contra Costa.
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its gGeneral Partner
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its sole Member/Manager
By:
Daniel Sawislak,
Executive Director
October 16, 2018 BOS Minutes 662
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EXHIBIT E
CDLAC RESOLUTION NO. 18-033
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EXHIBIT F
CDLAC RESOLUTION NO. 18-090
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October 16, 2018 BOS Minutes 678
Quint & Thimmig LLP 7/10/18
8/21/18
10/2/18
03007.43:J15232
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
and
ANTIOCH RECAP, L.P.
a California limited partnership
dated as of November 1, 2018
relating to:
$____________
County of Contra Costa
Multifamily Housing Revenue Bonds
(Antioch Scattered Site Renovation), Series 2018A
This Regulatory Agreement and Declaration of Restrictive Covenants pertains to the 32 units of
multifamily rental housing located at 35, 45, 101, 103, 104, 105, 106 and 107 West 20th Street in
Antioch, California, known as Terrace Glen Apartments.
October 16, 2018 BOS Minutes 679
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TABLE OF CONTENTS
Section 1. Definitions and Interpretation ........................................................................................................................ 2
Section 2. Representations, Covenants and Warranties of the Borrower .................................................................. 6
Section 3. Qualified Residential Rental Project .............................................................................................................. 8
Section 4. Low Income Tenants; Reporting Requirements ........................................................................................ 10
Section 5. Tax-Exempt Status of Issuer Notes .............................................................................................................. 12
Section 6. Requirements of the Act ................................................................................................................................ 13
Section 7. Requirements of the Issuer ........................................................................................................................... 14
Section 8. Modification of Covenants ............................................................................................................................ 17
Section 9. Indemnification; Other Payments ................................................................................................................ 18
Section 10. Consideration .................................................................................................................................................. 19
Section 11. Reliance ............................................................................................................................................................ 19
Section 12. Transfer of the Project .................................................................................................................................... 20
Section 13. Term ................................................................................................................................................................. 21
Section 14. Covenants to Run With the Land ................................................................................................................. 22
Section 15. Burden and Benefit ......................................................................................................................................... 22
Section 16. Uniformity; Common Plan ........................................................................................................................... 22
Section 17. Default; Enforcement ..................................................................................................................................... 22
Section 18. The Bank .......................................................................................................................................................... 23
Section 19. Recording and Filing ...................................................................................................................................... 24
Section 20. Payment of Fees .............................................................................................................................................. 24
Section 21. Governing Law; Venue .................................................................................................................................. 25
Section 22. Amendments; Waivers .................................................................................................................................. 25
Section 23. Notices ............................................................................................................................................................. 25
Section 24. Severability ...................................................................................................................................................... 26
Section 25. Multiple Counterparts ................................................................................................................................... 26
Section 26. Limitation on Liability ................................................................................................................................... 26
Section 27. Third-Party Beneficiaries ............................................................................................................................... 26
Section 28. Property Management ................................................................................................................................... 27
Section 29. Requirements of CDLAC .............................................................................................................................. 27
Section 30. Limited Liability of Issuer ............................................................................................................................. 29
Section 31. Conflict With Other Affordability Agreements ......................................................................................... 29
Section 32. Annual Reporting Covenant ......................................................................................................................... 29
EXHIBIT A DESCRIPTION OF REAL PROPERTY
EXHIBIT B FORM OF INCOME CERTIFICATION
EXHIBIT C FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
EXHIBIT D FORM OF COMPLETION CERTIFICATE
EXHIBIT E CDLAC RESOLUTION NO. 18-033
EXHIBIT F CDLAC RESOLUTION NO 18-090
October 16, 2018 BOS Minutes 680
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REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE
COVENANTS (as supplemented and amended from time to time, this “Regulatory
Agreement”), dated as of November 1, 2018, 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 ANTIOCH RECAP, L.P., a California limited
partnership duly organized, validly existing and in good standing under the laws of the State of
California (together with any successor to its rights, duties and obligations hereunder and as
owner of the Project identified herein, the “Borrower”).
RECITALS:
WHEREAS, the Issuer proposes to enter into an indenture of trust, dated as of
November 1, 2018 (as supplemented and amended from time to time, the “Indenture”), between
the Issuer and Wells Fargo Bank, National Association, as bondowner representative (the
“Bondowner Representative”) pursuant to which the Issuer will issue, pursuant to Chapter 7 of
Part 5 of Division 31 of the California Health and Safety Code (the “Act”), its County of Contra
Costa Multifamily Housing Revenue Bonds (Antioch Scattered Site Renovation), Series 2018A in
the initial principal amount of $____________ (the “Bonds”); and
WHEREAS, the proceeds of the Bonds will be used to fund a loan (the “Loan”) to the
Borrower pursuant to the Loan Agreement, dated as of November 1, 2018, among the Issuer, the
Bondowner Representative and the Borrower (as supplemented and amended from time to
time, the “Loan Agreement”), to provide financing for the acquisition and rehabilitation by the
Borrower of 56 units of multifamily rental housing (collectively referred to in the Indenture as
the “Project” and in this Regulatory Agreement as the “Projects”) identified collectively as
Antioch Scattered Site Renovation, including (a) 24 units located at 1945 Cavallo Road in the
City of Antioch, California, currently known as Pinecrest Apartments, and (b) 32 units located
at 35, 45, 101, 103, 104, 105, 106 and 107 West 20th Street in the City of Antioch, California,
currently known as Terrace Glen Apartments; and
WHEREAS, in connection with the Loan and the financing of the Projects, the Issuer and
the Borrower will enter into two separate Regulatory Agreements and Declaration of Restrictive
Covenants, each dated as of November 1, 2018, one with respect to Pinecrest Apartments, and
one with respect to Terrace Glen Apartments; and
WHEREAS, this is one of such agreements, is referred to herein as the “Agreement” or
the “Regulatory Agreement,” and pertains to the site described in Exhibit A hereto and the
units on such site (such units being referred to in this Regulatory Agreement as the “Project”);
and
WHEREAS, the other Regulatory Agreement and Declaration of Restrictive Covenants
that pertains to units comprising the Projects that are not to be located on the site described in
Exhibit A hereto is referred to herein as the “Other Regulatory Agreement,” and the units
situated on the site described in Exhibit A to the Other Regulatory Agreement are referred to
herein as the “Other Project;” and
October 16, 2018 BOS Minutes 681
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WHEREAS, in order to assure the Issuer and the Bondowner Representative that interest
on the Bonds will be excluded from gross income for federal income tax purposes under Section
103 of the Internal Revenue Code of 1986 (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
and the units in the Other Project need to be established and certain other requirements need to
be met.
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 are hereby 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, or in the Indenture.
“Administrator” means the Issuer or any administrator or program monitor appointed
by the Issuer to administer this Regulatory Agreement, and any successor administrator
appointed by the Issuer.
“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 Unit” 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 or County, as applicable, in which the
Project and the Other Project are located, as defined by the United States Department of
Housing and Urban Development.
“Available Units” means residential units in the Project that are actually occupied and
residential units in the Project that are vacant and have been occupied at least once after
becoming available for occupancy, provided that (a) a residential unit that is vacant on the later
of (i) the date the Project is acquired or (ii) the issue date of the Bonds is not an Available Unit
and does not become an Available Unit until it has been occupied for the first time after such
date, and (b) a residential unit that is not available for occupancy due to renovations is not an
Available Unit and does not become an Available Unit until it has been occupied for the first
time after the renovations are completed.
“CDLAC” means the California Debt Limit Allocation Committee or its successors.
“CDLAC Conditions” has the meaning given such term in Section 29(a).
October 16, 2018 BOS Minutes 682
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“CDLAC Resolutions” means, collectively, Resolution No. 18-033 relating to the Projects
attached hereto as Exhibit E, adopted by CDLAC on May 16, 2018, and Resolution No. 18-____
relating to the Projects attached hereto as Exhibit F, adopted by CDLAC on September 19, 2018,
as such resolutions may be modified or amended from time to time.
“Certificate of Continuing Program Compliance” means the Certificate to be filed by the
Borrower with the Issuer pursuant to Section 4(f) hereof, which shall be substantially in the
form attached as Exhibit C hereto 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 Antioch, California.
“Closing Date” has the meaning given to such term in the Indenture.
“Completion Certificate” means the certificate of completion of the rehabilitation of the
Projects 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 D.
“Completion Date” means the date of completion of the rehabilitation of the Projects, as
that date shall be certified as provided in Section 2(i) of this Regulatory Agreement.
“Compliance Period” means the period beginning on the first day of the Qualified
Project Period and ending on the later of the end of the Qualified Project Period or such later
date as set forth in Section 29(c) 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 focus.housingcompliance.org) 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.
“Gross Income” means the gross income of a person (together with the gross income of
all persons who intend to reside with such person in one residential unit) as calculated in the
manner prescribed in under section 8 of the Housing Act.
“Housing Law” or “Housing Act” means the United States Housing Act of 1937, as
amended, or its successor.
“Income Certification” means a Tenant Income Certification and a Tenant Income
Certification Questionnaire in the form attached as Exhibit B hereto or in such other comparable
form as may be provided by the Issuer to the Borrower, or as otherwise approved by the Issuer.
“Inducement Date” means June 5, 2018, being the date on which the Board of
Supervisors of the Issuer adopted Resolution No. 2018/189, expressing the Issuer’s intent to
issue the Bonds to provide financing for the Projects.
“Issuer Annual Fee” means: for the period from the Closing Date to but not including
November 1, 2019, an amount equal to one-eighth of one percent (1/8%) of the maximum
principal amount of the Bonds; and, thereafter, on each November 1 during the remainder of
October 16, 2018 BOS Minutes 683
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the Compliance Period, commencing November 1, 2019, 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 a tenant occupying a Low Income Unit.
“Low Income Unit” means any Available Unit if the aggregate Gross Income of all
tenants therein does not exceed limits determined in a manner consistent with determinations
of “low-income families” under Section 8 of the Housing Act, provided that the percentage of
median gross income that qualifies as low income hereunder shall be sixty percent (60%) of
median gross income for the Area, with adjustments for family size. A unit occupied by one or
more students shall only constitute a Low Income Unit if such students meet the requirements
of Section 142(d)(2)(C) of the Code. The determination of an Available Unit’s status as a Low
Income Unit shall be made by the Borrower upon commencement of each lease term with
respect to such unit, and annually thereafter, on the basis of an Income Certification executed by
each tenant.
“Manager” means a property manager meeting the requirements of Section 28 hereof.
Resources for Community Development is the initial Manager.
“Other Project” has the meaning given to such term in the Recitals to this Regulatory
Agreement.
“Other Regulatory Agreement” has the meaning given to such term in the Recitals to
this Regulatory Agreement.
“Project” means the rental housing development located on the site described in Exhibit
A hereto, consisting of those facilities, including a fee interest in the real property, structures,
buildings, fixtures or equipment situated thereon, as it may at any time exist, the rehabilitation
of which facilities is to be financed, in whole or in part, from the proceeds of the Loan 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 the facilities described
in the Loan Agreement. It is hereby acknowledged that the term “Project” when used in the
Loan Agreement, means the “Project” as defined herein together with the “Other Project,” as
defined herein.
“Projects” has the meaning given to such term in the Recitals to this Regulatory
Agreement.
“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 rehabilitation of the Projects 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 rehabilitation of the Projects shall not be a Qualified Project Cost; and
provided still further that if any portion of any of the Projects is being rehabilitated by an
October 16, 2018 BOS Minutes 684
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Affiliated 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
rehabilitating the Projects (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 Projects, 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 rehabilitation of the
Projects or payments received by such Affiliated Party due to early completion of the
rehabilitation of the Projects; (ii) the costs are paid with respect to a qualified residential rental
project or projects 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 Closing Date, and (iv) if the Project
Costs were previously paid and are to be reimbursed with proceeds of the Loan or the Bonds,
such costs were (A) costs of issuance of the Issuer Note, (B) preliminary capital expenditures
(within the meaning of United States Treasury Regulations §1.139-2(f)(2)) with respect to the
Projects (such as architectural, engineering and soil testing services) incurred before
commencement of the rehabilitation of the Projects 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 Projects that are reimbursed no later than eighteen
(18) months after the later of the date the expenditure was paid or the date the Projects are
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
rehabilitation of any office or commercial space located on a site on which the Project or one of
the Other Project is located.
“Qualified Project Period” means the period beginning on the Closing Date and ending
on the later of the following: (a) the date that is fifteen (15) years after the date on which at least
fifty percent (50%) of the units in the Projects are first occupied; (b) the first date on which no
Tax-Exempt private activity bonds with respect to the Projects are Outstanding; or (c) the date
on which any assistance provided with respect to any of the Projects under Section 8 of the
Housing Act terminates; provided, however, that if at least 10% of the residential units in the
Project are Available Units at all times within 60 days after the later of (1) the date the Project is
acquired by the Borrower, or (2) the issue date of the Bonds, then the Qualified Project Period
shall begin on the date one year after the issue date of the Bonds and end on the later of (A) the
date that is fifteen (15) years after such date or (B) the later of the dates specified in the
foregoing clauses (a), (b) and (c) above.
“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.
“Rental Payments” means the rental payments paid by the occupant of a unit, excluding
any supplemental rental assistance to the occupant from the State, the federal government, or
any other public agency, but including any mandatory fees or charges imposed on the occupant
by the Borrower as a condition of occupancy of the unit.
“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 or environmental tax, under the Code.
October 16, 2018 BOS Minutes 685
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“Transfer” means the conveyance, assignment, sale or other disposition of all or any
portion of the Project; and shall also include, without limitation to the foregoing, the following:
(a) an installment sales agreement wherein Borrower agrees to sell the Project or any part
thereof for a price to be paid in installments; and (b) an agreement by the Borrower leasing all
or a substantial part of the Project to one or more persons or entities pursuant to a single or
related transactions.
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. This 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.
(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, this Regulatory Agreement or the Other 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, 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, the Bondowner Representative and the
Borrower, to comply fully with the Act, the Code and all applicable rules, rulings, policies,
procedures, Regulations 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.
(e) The acquisition by the Borrower of an interest in the sites on which the Project and
the Other Project are located and the commencement of the rehabilitation of the Projects
occurred after the date which was 60 days prior to the Inducement Date. The Borrower has
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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 rehabilitation of the
Project and the Other Project and the full expenditure of the proceeds of the Loan. The Borrower
reasonably expects to complete the rehabilitation of the Projects and to expend the full
maximum principal amount of the Loan by November 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) Notwithstanding the provisions of Section 5.18 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 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.
(i) As soon as practicable after the Completion Date of the Project and the Other Project,
the Borrower shall deliver to the Issuer and the Bondowner Representative a duly executed
Completion Certificate. Only one Completion Certificate shall be prepared and filed with
respect to this requirement and Section 2(i) of the Other Regulatory Agreement.
(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) The Borrower agrees to expend towards the rehabilitation of the Project and the
Other Project (such expenditures to constitute “rehabilitation expenditures” as defined in
Section 147(d) of the Code), within two (2) years of the Closing Date, an amount at least equal to
fifteen percent (15%) of the proceeds of the Loan used to acquire the buildings (and equipment)
comprising the Projects.
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(l) Money on deposit in any fund or account in connection with the Bonds or the Loan,
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 the Loan 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) No portion of the proceeds 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. No
proceeds of the Loan shall be used for an office unless the office is located on the premises of the
facilities constituting the Project or the Other 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 or the Other Project.
(o) In accordance with Section 147(b) of the Code, the average maturity of the Bonds
does not exceed 120% of the average reasonably expected remaining economic life of the
facilities being financed by the Bonds.
(p) The Borrower shall comply with all applicable requirements of Section 65863.10 of
the California Government Code pertaining to the Project, 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 pertaining to the Project.
(q) The Borrower shall pay all of the Issuance Costs.
(r) 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 and
the Loan Agreement relating to the Projects.
(s) The Borrower hereby represents and warrants that the Project is located entirely
within the City.
(t) The Borrower agrees to comply with the provisions of Section 5.18 of the Loan
Agreement, as in effect on the Closing Date.
(u) The Borrower acknowledges, represents and warrants that it understands the nature
and structure of the transactions contemplated by this Regulatory Agreement and the Other
Regulatory Agreement; that it is familiar with the provisions of all of the documents and
instruments relating to the Bonds and the Loan 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 the Project and the Other 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 “residential rental project”
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(within the meaning of Section 142(d) of the Code) for a term equal to the Compliance 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 rehabilitated and operated for the purpose of providing
multifamily residential rental property. The Borrower will own, manage and operate
the Project as a project to provide multifamily residential rental property 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 (except for not more than one unit set
aside for a resident manager or other administrative use) are similarly constructed units,
and each dwelling unit in the Project contains 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 or rented for a period of less than 30 consecutive days, or will ever be
used as a hotel, motel, dormitory, fraternity house, sorority house, rooming house,
nursing home, hospital, sanitarium, rest home or trailer court or park; provided that the
use of certain units for tenant guests on an intermittent basis shall not be considered
transient use for purposes of this Regulatory Agreement.
(d) No part of the Project will at any time during the Compliance 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 Compliance Period (except that the Borrower may obtain final map approval
and the Final Subdivision Public Report from the California Department of Real Estate
and may file a condominium plan with the City).
(e) All of the Available Units in the Project will be available for rental during the
period beginning on the date hereof and ending on the termination of the Compliance
Period on a continuous, “first-come, first-served” basis to members of the general public,
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 a
resident manager or other administrative use, or (ii) to the extent that dwelling units are
required to be leased or rented in such a manner that they constitute Low Income Units
or otherwise as necessary to comply with Section 6(a), (b) and (c), (iii) to the extent
required under any “extended low-income housing commitment (an “Extended Use
Agreement”) applicable to the Project, (iv) to the extent required by the provisions of
any documents related to the provision of State or federal low income housing tax
credits for the Project, or (v) to the extent required under any of the Subordinate Loan
Documents (as defined in the Loan Agreement).
(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
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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, 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
paragraph 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.
(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 by
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
Regulations as applicable to the Project, 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 rehabilitate the Project to meet the requirements of Section 142(d) of
the Code and the applicable Regulations.
(k) 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 and the Other 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).
The Issuer hereby elects to have the Project and the Other Project meet the requirements
of Section 142(d)(1)(B) of the Code.
Section 4. Low Income Tenants; Reporting Requirements. Pursuant to the requirements
of the Code, the Borrower hereby represents, warrants and covenants as follows:
(a) During the Compliance Period, no less than forty percent (40%) of the total
number of completed units in the Project, and not less than forty percent (40%) of the
units in the Other Project, shall at all times be Low Income Units. For the purposes of
this paragraph (a), a vacant unit that was most recently a Low Income Unit is treated as
a Low Income Unit 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.
Notwithstanding the foregoing provisions of this Section 4(a), the Borrower shall
not be in default under such requirements so long as (i) the Borrower uses its best efforts
to comply with such requirements as soon as practicable following the Closing Date, and
(ii) with respect to the Project and the Other Project, any unit which becomes available
for rental following the Closing Date becomes a Low Income Unit as necessary to satisfy
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the requirements of Section 4(a). In no event, however, shall the Borrower fail to comply
with the foregoing provisions of this Section 4(a) of this Regulatory Agreement by
November 1, 2019.
(b) No tenant qualifying as a Low Income Tenant upon initial occupancy shall be
denied continued occupancy of a unit in the Project or in the Other Project because, after
admission, the aggregate Gross Income of all tenants in the unit occupied by such Low
Income Tenant increases to exceed the qualifying limit for a Low Income Unit.
However, should the aggregate Gross Income of tenants in a Low Income Unit, as of the
most recent determination thereof, exceed one hundred forty percent (140%) of the
applicable income limit for a Low Income Unit occupied by the same number of tenants,
the next available unit of comparable or smaller size must be rented to (or held vacant
and available for immediate occupancy by) Low Income Tenant(s). The unit occupied
by such tenants whose aggregate Gross Income exceeds such applicable income limit
shall continue to be treated as a Low Income Unit for purposes of the 40% requirement
of Section 4(a) hereof unless and until an Available Unit of comparable or smaller size is
rented to persons other than Low Income Tenants.
(c) For the Compliance Period, the Borrower will obtain, complete and maintain
on file Income Certifications for each Low Income Tenant, including (i) an Income
Certification dated immediately prior to the initial occupancy of such Low Income
Tenant in the unit and a second Income Certification dated one year after the Low-
Income Tenant’s initial move-in date, and (ii) thereafter, an annual Income Certification
with respect to each Low Income Tenant. In lieu of obtaining the annual Income
Certifications required by clause (ii) of the preceding sentence, the Borrower may, with
respect to any particular twelve-month period ending each February 1, deliver to the
Administrator no later than fifteen days after such date a certification that as of each
February 1, no residential unit in the Project was occupied within the preceding twelve
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 Income Certifications for tenants.
The Borrower will also provide such additional information as may be required in the
future by the Code, the State or the Issuer, 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 Income Certifications for Low Income Tenants
commencing or continuing occupation of a Low Income Unit shall be submitted to the
Administrator or the Issuer, as requested.
(d) The Borrower shall make a good faith effort to verify that the income
information provided by an applicant in an Income Certification 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.
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(e) 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
Department of the Treasury or the Internal Revenue Service to inspect the books and
records of the Borrower pertaining to the Projects, including those records pertaining to
the occupancy of the Low Income Units.
(f) The Borrower will prepare and submit to the Administrator, on behalf of the
Issuer, not less than semi-annually, commencing not less than six months after the
Closing Date, a Certificate of Continuing Program Compliance executed by the
Borrower in substantially the form attached hereto as Exhibit C. During the Compliance
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 Projects, 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).
(g) For the Compliance Period, all tenant leases or rental agreements shall be
subordinate to this Regulatory Agreement and the Deed of Trust. 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 by such
tenant in the Income Certification; (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 Issuer or the Administrator on behalf of the
Issuer, and that the failure to provide accurate information in the Income Certification 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 statements made by such tenant in the Income
Certification and supporting information supplied by the Low Income Tenant in
determining qualification for occupancy of a 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) and that
if upon any such certification the aggregate Gross Income of tenants in such unit exceeds
the applicable income limit under Section 4(b), the unit occupied by such tenant may
cease to qualify as a Low Income Unit and such unit’s rent may be subject to increase.
For purposes of this Section 4, no unit occupied by a residential manager shall be treated
as a rental unit during the time of such occupation.
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 Issuer
(with a copy to the Borrower), in order to insure that the requirements and restrictions of
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this Regulatory Agreement will be binding upon all owners of the Project, and the
requirements and restrictions of the Other Regulatory Agreement will be binding upon
all owners of the Other Project, including, but not limited to, the execution and
recordation of this Regulatory Agreement in the real property records of the County.
Section 6. Requirements of the Act. In addition to the other requirements set forth
herein, the Borrower hereby agrees that it shall comply with each of the requirements of the
Act, including the following:
(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)).
(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:
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(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.
(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. Requirements of the Issuer. In addition to other requirements set forth herein
and to the extent not prohibited by the requirements set forth in Sections 4 through 6 hereof, the
Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this
Section 7, 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
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
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required to comply with Section 3(e)(iii), (iv) or (v)), 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 November 1, 2019, and (ii) on each November 1, on and after November 1,
2019, 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, 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
Section 5.19 of the Loan Agreement.
(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
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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 and 6 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 7 shall be in effect for the Compliance Period.
Any of the foregoing requirements of the Issuer contained in this Section 7 may be
expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of
this Section 7 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
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purposes; and (ii) any requirement of this Section 7 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 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, retroactively impose requirements upon the
ownership or operation of the Project or of the Other Project more restrictive than those
imposed by this Regulatory Agreement, and if such requirements are applicable to the
Project and compliance therewith is necessary to maintain the validity of, or the Tax-
Exempt status of interest on the Bonds, 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 or of the Other 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, at its sole discretion, and the Borrower, and with the prior written consent of the
Bondowner Representative, 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 otherwise in accordance
with Section 22 hereof.
(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 in writing by Bond
Counsel) 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 without first notifying the Borrower or the Issuer, or both of them, as is
applicable, in writing 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 or the
Borrower.
Notwithstanding any other provision of this Regulatory Agreement, whenever an
opinion of 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 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.
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Section 9. Indemnification; Other Payments. 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 officers, Supervisors,
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) 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, the Loan Agreement, this Regulatory Agreement,
the Other Regulatory Agreement, the Assignment Agreement, the Supplemental
Agreement or the Tax Certificate and all documents related thereto, or the execution or
amendment hereof or thereof or in connection with transactions contemplated hereby or
thereby, including the issuance, sale, resale or remarketing of the Bonds;
(ii) any act or omission of the Borrower or any of its agents, contractors,
servants, employees or licensees in connection with the Loan, the Project or the Other
Project, the acquisition, rehabilitation or operation of the Project or the Other 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 and rehabilitation of, the Project or the Other Project or any part thereof;
(iii) any lien or charge upon payments by the Borrower to the Issuer and the
Bondowner Representative hereunder, under the Other Regulatory Agreement 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 or the Other Project;
(iv) any violation of any environmental law, rule or regulation with respect to,
or the release of any toxic substance from, the Project or the Other 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 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 document for
the Loan 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; or
(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;
except 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 selected by the Indemnified Party, and shall assume the payment of all
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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. In addition to the foregoing, the Borrower
shall pay upon demand all of the fees and expenses paid or incurred by the Issuer in enforcing
the provisions hereof.
In addition thereto, the Borrower will pay upon demand all of the fees and expenses
paid or incurred by the Issuer in enforcing the provisions hereof.
The provisions of this Section 9 shall survive the final payment or defeasance of the
Bonds and the termination of this Regulatory Agreement; provided, however, the provisions of
this Section shall, in the case of the Issuer, survive the term of this Regulatory Agreement, but
only as to claims arising from events occurring during the term of this Regulatory Agreement.
Nothing contained in this Section 9 shall cause the obligation of the Borrower to pay
principal and interest on the Loan or amounts owing with respect to the Note to be a recourse
obligation of the Borrower.
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 Project and the Other Project, all for the purpose, among
others, of inducing the Borrower to acquire, rehabilitate, develop and operate the Project and
the Other Project. In consideration of the issuance of the Bonds by the Issuer, the Borrower has
entered into this Regulatory Agreement and the Other Regulatory Agreement and has agreed to
restrict the uses to which this Project and the Other Project can be put on the terms and
conditions set forth herein and therein.
Section 11. Reliance. The Issuer and the Borrower hereby recognize and agree that the
representations and covenants set forth herein and in the Other Regulatory Agreement may be
relied upon by all persons, including but not limited to the Administrator and the Bondowner
Representative, interested in the legality and validity of the Bonds, in the exemption from
California 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
Administrator may rely upon statements and certificates of the Low Income Tenants, and upon
audits of the books and records of the Borrower pertaining to the Project and the Other Project.
In addition, the Issuer 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 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
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records of the Borrower and may rely solely on any written notice or certificate delivered to the
Issuer by the Borrower with respect to the occurrence or absence of a default.
Section 12. Transfer of the Project. For the Compliance Period, the Borrower shall not
Transfer the Project, in whole or in part, without the prior written consent of the Issuer, which
consent shall not be unreasonably withheld or delayed if the following conditions are satisfied:
(A) the receipt by the Issuer of evidence acceptable to the Issuer that (1) the Borrower shall not
be in default hereunder, under the Other Regulatory Agreement or under any of the other Loan
Documents in effect, or the transferee 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 transferee or its 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 governmental requirements applicable to such projects, or (b) the transferee agrees to
retain a Manager 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, or
another management company reasonably acceptable to the Issuer will manage, for at least one
year following such Transfer and, if applicable, during such period the transferring Borrower or
its management company will provide training to the transferee and its manager in the
responsibilities relating to the Low Income Units; and (4) the person or entity that is to acquire
the Project does not have pending against it, and does not have a history of significant and
material building code violations or 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 transferee of a document reasonably
acceptable to the Issuer with respect to the assumption of the Borrower’s obligations under this
Regulatory Agreement and the other Loan Documents in effect, including without limitation an
instrument of assumption hereof and thereof, and delivery to the Issuer of an opinion of such
transferee’s counsel to the effect that each such document and this Regulatory Agreement are
valid, binding and enforceable obligations of such transferee, subject to bankruptcy and other
standard limitations affecting creditor’s rights; (C) receipt by the Issuer of an opinion of Bond
Counsel to the effect that any such Transfer will not adversely affect the Tax-Exempt status of
interest on the Bonds; (D) receipt by the Issuer of all fees and/or expenses then currently due
and payable to the Issuer by the Borrower; (E) receipt by the Issuer of evidence of satisfaction of
compliance with the provisions of Section 29(d)(i) related to notice to CDLAC of transfer of the
Project; (F) the Other Project shall be transferred coterminously with the transfer of the Project,
to the same transferee; and (G) such other conditions are met as the Issuer may reasonably
impose.
It is hereby expressly stipulated and agreed that any Transfer 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. The written consent of the Issuer to any Transfer of the Project shall
constitute conclusive evidence that the Transfer is not in violation of this Section 12. 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 satisfy certain conditions or
obtain the prior written consent of such other party in order to Transfer the Project. Upon any
Transfer that complies with this Regulatory Agreement, the Borrower shall be fully released
from its obligations hereunder, but only to the extent such obligations have been fully assumed
in writing by the transferee of the Project.
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The foregoing notwithstanding, the Project may be transferred pursuant to a foreclosure,
exercise of power of sale or deed in lieu of foreclosure or comparable conversion under the
Deed of Trust without the consent of the Issuer or compliance with the provisions of this
Section 12. The Issuer hereby approves the transfer of limited partnership interests in the
Borrower to affiliates of the investor limited partner of the Borrower, including, without
limitation, the transfer of partnership interests in the Borrower from the investor limited partner
and non-managing membership interests in the limited partner of Borrower.
For the Compliance Period, the Borrower shall not: (1) encumber any of the Project or
grant commercial leases of any part thereof, or permit the conveyance, transfer or encumbrance
of any part of the Project, except for (A) encumbrances permitted under the Deed of Trust, or
(B) a Transfer in accordance with the terms of this Regulatory Agreement, in each case upon
receipt by the Issuer of an opinion of Bond Counsel to the effect that such action will not
adversely affect the Tax-Exempt status of interest on the Bonds (provided that such opinion will
not be required with respect to any encumbrance, lease or transfer relating to a commercial
operation or ancillary facility that will be available for tenant use and is customary to the
operation of multifamily housing developments similar to 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 demolished or removed is replaced with comparable property or such
demolition or removal is otherwise permitted by the Loan Agreement or the Deed of Trust; 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 Compliance
Period, it being expressly agreed and understood that the provisions hereof are intended to
survive the retirement of the Bonds and discharge of the Loan Agreement.
The terms of this Regulatory Agreement to the contrary notwithstanding, the
requirements of 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 or other casualty, seizure, requisition, foreclosure or transfer of title by 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 such provisions, or condemnation or a similar
event, but only if, within a reasonable period, either the Loan is repaid or amounts received as a
consequence of such event are used to provide a project that 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.
Notwithstanding any other provision of this Regulatory Agreement, this Regulatory
Agreement may be terminated upon agreement by the Issuer and the Borrower, with the
consent of CDLAC, upon receipt by the Issuer of an opinion of Bond Counsel to the effect that
such termination will not adversely affect the exclusion from gross income of interest on the
Bonds for federal income tax purposes and is otherwise permitted under the Act. Upon the
termination of the terms of this Regulatory Agreement, the parties hereto agree to execute,
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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 title 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 or in the Other Regulatory Agreement, and if such default remains
uncured for a period of 60 days after notice thereof shall have been given by the Issuer or the
Bondowner Representative (with a copy to the Issuer) to the Borrower, or for a period of 60
days from the date the Borrower should, with reasonable diligence, have discovered such
default, then the Issuer 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 60
days, such default shall not constitute an Event of Default hereunder so long as (i) the Borrower
institutes corrective action within said 60 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 60 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 and under the Other Regulatory Agreement within
shorter periods of time than are otherwise provided herein if necessary to insure compliance
with the Act or the Code.
Following the declaration of an Event of Default hereunder, the Issuer or the Bondowner
Representative, subject to the terms of the Loan Agreement, may 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
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covenants hereunder or enjoin any acts or things that may be unlawful or in violation of
the rights of the Issuer 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 and the Other 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; and
(iv) with the consent of the Bondowner Representative, which consent shall not
be unreasonably withheld, declare a default under the Loan Agreement, as applicable,
and proceed with any remedies provided therein.
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 this
Regulatory Agreement 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.
The Bondowner Representative shall have the right, in accordance with this Section and
the provisions of the Loan Agreement, 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.
The Issuer and the Bondowner Representative hereby agree (i) that cure of any Event of
Default made or tendered by any partner of the Borrower shall be deemed to be a cure by the
Borrower and shall be accepted or rejected on the same basis as if made or tendered by the
Borrower, and (ii) that a copy of any notice delivered hereunder to the Borrower shall be
delivered to Borrower’s investor limited partner at its address set forth in the Indenture.
All reasonable fees, costs and expenses (including reasonable attorney’s fees) of the
Bondowner Representative and the Issuer incurred in taking any action pursuant to this Section
shall be the sole responsibility of the Borrower; provided, however, that in the event that any
action arises hereunder in which the Borrower and the Bondowner Representative are
adversaries, the prevailing party, if any, shall be entitled to recover legal fees and costs from the
other party.
Section 18. 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 and the Loan Agreement 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
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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 the Bonds no longer 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 19. Recording and Filing. (a) The Borrower shall cause this Regulatory
Agreement, the Other 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 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 reasonably necessary, in the opinion of Bond Counsel, 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 to the end that such transferee has notice of, and is bound by,
such restrictions, and, except in the case of a foreclosure or comparable involuntary conversion
of the Deed of Trust, whereby the Bondowner Representative becomes the owner of the Project,
to obtain the agreement from any transferee to abide by all requirements and restrictions of this
Regulatory Agreement.
Section 20. Payment of Fees. Notwithstanding any prepayment of the Loan and
discharge of the Loan Agreement, the Borrower shall continue to pay (or, to the extent allowed
under the Code, shall prepay the present value at such time of) the fees of the Issuer as
provided in this Section 20, unless such prepayment is made in connection with a refunding of
the Bonds.
The Borrower agrees to pay to the Issuer (i) the Issuer Issuance Fee, which shall be paid
on or before the Closing Date, (ii) the Issuer Annual Fee, which shall be payable commencing on
the Closing Date and annually on each November 1 thereafter, and continuing throughout the
Compliance Period, and (iii) within 30 days after receipt of request for payment thereof, all
reasonable out-of-pocket expenses of the Issuer (not including salaries and wages of Issuer
employees) related to the Bonds, the Loan, and the Projects and the financing thereof, including,
without limitation, legal fees and expenses incurred in connection with the interpretation,
performance, enforcement or amendment of any documents relating to the Projects, the Bonds,
the Loan or any of the Loan Documents. Only one Issuer Issuance Fee and only one Issuer
Annual Fee shall be payable with respect to the Project and the Other Project.
In the event that the Qualified Project Period terminates prior to the termination of the
Compliance Period (other than by reason of the issuance of refunding bonds), and provided
that the conditions of this Section are satisfied, the Borrower shall thereafter and for the
remainder of the Compliance Period pay to the Issuer annually in advance an amount equal to
$5,000. The full Issuer Annual Fee shall continue to be payable unless and until the Issuer has
confirmed receipt of all amounts then due and payable in arrears by the Borrower to the Issuer
in connection with the Loan, at which point the Issuer Annual Fee shall become effective.
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If the Borrower fails to make payment of the Issuer Annual Fee for a period of two
consecutive years or more, the Issuer may, in its sole discretion, declare the total amount of the
Issuer Annual Fee through the end of the Compliance Period immediately due and payable,
such amount to be discounted at a rate equal to the then current market rate for U.S. Treasury
obligations of a maturity equal to the remaining term of the Compliance Period.
Section 21. Governing Law; Venue. This Regulatory Agreement shall be construed in
accordance with and governed by the laws of the State of California applicable to contracts
made and performed in the State of California. This Regulatory Agreement shall be enforceable
in the State of California, and any action arising hereunder shall (unless waived by the Issuer in
writing) be filed and maintained in the Superior Court of California, County of Contra Costa.
Section 22. Amendments; Waivers. (a) Except as provided in Section 8(a) and 29(e)
hereof, this Regulatory Agreement may be amended only by a written instrument executed by
the parties hereto or their successors in title, and duly recorded in the real property records of
the County, and only upon (i) receipt by the Issuer 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 and (ii) the written consent of the Bondowner
Representative, who shall receive a copy of any such amendment.
(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 remains Tax-Exempt. The parties
requesting such amendment shall notify the other parties to this Regulatory Agreement of the
proposed amendment, with a copy of such proposed amendment to Bond Counsel and a
request that Bond Counsel render to the Issuer 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
specified in the Indenture, or at such other addresses as may be specified in writing by the
parties hereto. Unless otherwise specified by the Administrator, the address of the
Administrator is the same as the address of the Issuer.
Unless otherwise specified by CDLAC, the address of CDLAC is:
California Debt Limit Allocation Committee
915 Capitol Mall, Room 311
Sacramento, CA 95814
Attention: Executive Director
The Issuer, the Administrator, CDLAC and the Borrower 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;
provided that any telecopy or other electronic transmission received by any party after 4:00
October 16, 2018 BOS Minutes 705
-26-
p.m., local time of the receiving party, as evidenced by the time shown on such transmission,
shall be deemed to have been received the following Business Day. A copy of each notice of
default provided to the Borrower hereunder shall also be provided to the Bondowner
Representative at its addresses set forth in the Indenture.
The Borrower shall notify the Issuer and the Administrator in writing of any change to
the name of the Project or any change of name or address for the Borrower or the Manager. The
Borrower shall further notify CDLAC in writing of any event provided in Section 29(d) hereof.
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. Limitation on Liability. Notwithstanding the foregoing or any other
provision or obligation to the contrary contained in this Regulatory Agreement, (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 and the amounts held in the funds and accounts
created under the Loan Agreement and the Indenture, or any rights of the Borrower under any
guarantees relating to the Projects, 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, nor any order or decree of specific
performance (other than pertaining to this Regulatory Agreement, any agreement pertaining to
the Project, the Other Project or any other agreement securing the Borrower’s obligations under
this Regulatory Agreement), shall be rendered against the Borrower, the assets of the Borrower
(other than the Borrower’s interest in the Project and the Other Project, this Regulatory
Agreement, amounts held in the funds and accounts created under the Loan Agreement, any
rights of the Borrower under the Loan Agreement or any other documents relating to the Loan
or any rights of the Borrower under any guarantees relating to the Project and the Other
Project), its partners, successors, transferees or assigns and each of their respective 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 and the Loan Agreement or
any agreement securing the obligations of the Borrower under this Regulatory Agreement, or
any judgment, order or decree rendered pursuant to any such action or proceeding, except to
the extent provided in the Loan Agreement.
Section 27. Third-Party Beneficiaries. The City, the Bondowner Representative and
CDLAC are intended to be and shall each be a third-party beneficiary of this Regulatory
Agreement. The City shall have the right (but not the obligation) to enforce, separately or
jointly with the Issuer and/or the Bondowner Representative, the terms of this Regulatory
Agreement and to pursue an action for specific performance or other available remedy at law or
in equity in accordance with Section 17 hereof. CDLAC 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 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.
October 16, 2018 BOS Minutes 706
-27-
Section 28. Property Management. The Borrower agrees that at all times the Project
shall be managed by a property manager (i) approved by the Issuer in its reasonable discretion
and (ii) who 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 governmental requirements applicable to such projects (the
“Manager”). The Borrower shall submit to the Issuer from time to time such information about
the background, experience and financial condition of any existing or proposed Manager as the
Issuer may reasonably require to determine whether such Manager meets the requirements for
a Manager set forth herein. The Issuer reserves the right to conduct periodic reviews of the
management practices and of the Manager to determine if the Project is being operated and
managed in accordance with the requirements and standards of this Agreement. The Borrower
agrees to cooperate with the Issuer in such reviews.
If the Issuer determines in its reasonable judgment that the Project is not being operated
and managed in accordance with one or more of the material requirements or standards of this
Agreement, the Issuer may deliver notice to the Borrower and the Bondowner Representative
requesting replacement of the Manager, which notice shall state clearly the reasons for such
request. The Borrower agrees that, upon receipt of such notice, it shall within 60 days submit to
the Issuer, with a copy to the Bondowner Representative, a proposal to engage a new Manager
meeting the requirements of this Section 28. Each of the Issuer and the Bondowner
Representative shall respond within 30 days to such proposal or such approval shall be deemed
given. Upon receipt of such consent or deemed consent, the Borrower shall within 60 days
terminate the existing Manager’s engagement and engage the new Manager. If such proposal is
denied by either the Issuer or the Bondowner Representative, the Borrower agrees that upon
receipt of notice of such denial, it shall within 60 days submit to the Issuer, with copies to the
Bondowner Representative, a proposal to engage another new Manager meeting the
requirements of this Section 28, subject to the Issuer’s and Bondowner Representative’s consent
or deemed consent pursuant to the terms hereof.
Notwithstanding any other provision of this Section 28 to the contrary, the Bondowner
Representative may at any time by written instruction to the Issuer and the Borrower deny the
Issuer’s request for a replacement Manager and direct that the existing Manager be retained.
Section 29. Requirements of CDLAC. In addition to other requirements set forth herein
and to the extent not prohibited by the requirements set forth in Sections 4 through 6 hereof, the
Borrower hereby agrees to comply with each of the requirements of CDLAC set forth in this
Section 29, as follows:
(a) The Borrower shall comply with the CDLAC Resolutions attached hereto as
Exhibit E and Exhibit F and the CDLAC Conditions set forth in Exhibits A thereto
(collectively, the “CDLAC Conditions”), which conditions are incorporated herein by
reference and made a part hereof. The Borrower will prepare and submit to the Issuer,
not later than February 1 of each year, until the rehabilitation of Project and the Other
Project is completed, and on February 1 every three years thereafter until the end of the
Compliance Period, a Certificate of Compliance 11 for Qualified Residential Rental
Projects, in substantially the form required or otherwise provided by CDLAC from time
to time, executed by an authorized representative of the Borrower. Such Certificate of
Compliance 11 for Qualified Residential Rental Projects shall be shall be prepared
pursuant to the terms of the CDLAC Conditions. Additionally, the Borrower will
prepare and submit to the Issuer, a Certificate of Completion, in substantially the form
required or otherwise provided by CDLAC, executed by an authorized representative of
October 16, 2018 BOS Minutes 707
-28-
the Borrower certifying among other things to the substantial completion of the Project
and the Other Project. Compliance with the terms of the CDLAC Conditions not
contained within this Regulatory Agreement, but referred to in the CDLAC Conditions
are the responsibility of the Borrower to report to the Issuer.
(b) The Borrower acknowledges that the Issuer and the Administrator will
monitor or cause to be monitored the Borrower’s compliance with the terms of the
CDLAC Conditions. The Borrower acknowledges that the Issuer will prepare and
submit to CDLAC, not later than March 1 of each year until the rehabilitation of the
Projects has been completed, and on March 1 of every three years thereafter until the
end of the Compliance Period, a Self-Certification Certificate in the form provided by
CDLAC. The Borrower will cooperate fully with the Issuer in connection with such
monitoring and reporting requirements.
(c) Except as otherwise provided in Section 13 of this Regulatory Agreement,
this Regulatory Agreement shall terminate on the date 55 years after the date on which
at least fifty percent (50%) of the units in the Project are first occupied or the
commencement of the Qualified Project Period, whichever is earlier.
(d) The Borrower shall notify CDLAC in writing of: (i) any change in ownership
of the Project, (ii) any change in the issuer of the Bonds, (iii) any change in the name of
the Project or the Manager; (iv) any material default under the Indenture, the Loan
Agreement, the Other Regulatory Agreement or this Regulatory Agreement, including,
but not limited to, such defaults associated with the Tax-Exempt status of the Bonds,
and the income and rental requirements as provided in Sections 4 and 6 hereof and the
CDLAC Conditions; or (v) termination of this Regulatory Agreement.
(e) CDLAC shall have the right, but not the obligation, to deliver revised
CDLAC Conditions to the Borrower after the Closing Date at any time that are not more
restrictive than the original CDLAC Conditions; provided however, that, with the prior
written consent of the Bondowner Representative, which will not be unreasonably
withheld: (i) any changes in the terms and conditions of such revised CDLAC
Conditions prior to the recordation against the Project in the real property records of the
County of a regulatory agreement between the Borrower and the California Tax Credit
Allocation Committee (“TCAC Regulatory Agreement”) shall be limited to such changes
as are necessary to correct any factual errors or to otherwise conform the CDLAC
Conditions to any change in facts or circumstances applicable to the Borrower or the
Project; and (ii) after recordation of the TCAC Regulatory Agreement, any changes in
the terms and conditions of such revised CDLAC Conditions shall be limited to such
changes as are necessary to conform Items 1, 6, 7, 10, 11, 12, 14, 15, 16, 18 through 26 and
37 of Exhibits A to the CDLAC Resolutions to any change in terms and conditions
requested by the Borrower and approved by CDLAC. The Borrower shall record or
cause to be recorded in the real property records of the County an amendment to this
Regulatory Agreement containing such revised CDLAC Conditions, executed by the
parties hereto or their successor in title and pay any expenses in connection therewith.
The Borrower shall provide CDLAC with a copy of that recorded amendment reflecting
the revised CDLAC Conditions.
Any of the foregoing requirements of the CDLAC contained in this Section 29 may be
expressly waived by CDLAC, in its sole discretion, in writing, but (i) no waiver by CDLAC of
any requirement of this Section 29 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 or the Code and may be
October 16, 2018 BOS Minutes 708
-29-
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 29 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, the Code or any other state or federal law.
Section 30. Limited Liability of Issuer. 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. Notwithstanding any
provision in this Regulatory Agreement to the contrary, in the event of any conflict between the
provisions of this Regulatory Agreement and any other agreement that imposes affordability
requirements on the Project, including those referenced in Section 3(e) hereof, the provisions
providing for the most affordable units, with the most affordability, in the Project shall prevail,
so long as at all times the requirements of Section 2, 3, 4, 6, 7 and 29 of this Regulatory
Agreement are in any event satisfied. Notwithstanding the foregoing, a breach or default under
any agreement referenced in Section 3(e) hereof shall not, in itself, constitute a breach or a
default under this Regulatory Agreement.
Section 32. Annual Reporting Covenant. No later than January 31 of each calendar year
(commencing January 31, 2019), the Borrower, on behalf of the Issuer, agrees to provide to the
California Debt and Investment Advisory Commission, by any method approved by the
California Debt and Investment Advisory Commission, with a copy to the Issuer, the annual
report information required by section 8855(k)(1) of the California Government Code with
respect to the Bonds. This covenant shall remain in effect until the later of the date (a) the
Bonds are no longer outstanding or (b) the proceeds of the Bonds have been fully spent.
October 16, 2018 BOS Minutes 709
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
By:
John Kopchik,
Director, Department of Conservation
and Development
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its sole Member/Manager
By:
Daniel Sawislak,
Executive Director
03007.43:J15232
October 16, 2018 BOS Minutes 710
NOTARY ACKNOWLEDGMENT
State of California
ss.
County of
On , before me, , Notary Public
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 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.
October 16, 2018 BOS Minutes 711
NOTARY ACKNOWLEDGMENT
State of California
ss.
County of
On , before me, , Notary Public
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 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.
October 16, 2018 BOS Minutes 712
A-1
EXHIBIT A
DESCRIPTION OF REAL PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ANTIOCH,
COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
LOTS 2, 3, 5, 6, 9, 10 AND 13, MAP OF ANTIOCH BUSINESS CENTER, FILED ON JULY 14, 1947,
MAP BOOK 33, PAGE 33, CONTRA COSTA COUNTY RECORDS.
PARCEL TWO:
PORTION OF CESA LANE (VACATED) AS SHOWN ON THE MAP OF ANTIOCH BUSINESS
CENTER, FILED JULY 14, 1947, MAP BOOK 33, PAGE 33, CONTRA COSTA COUNTY RECORDS,
DESCRIBED AS FOLLOWS:
BEGINNING ON THE WEST LINE OF CESA LANE AS SHOWN AS SAID MAP (33 M 33)
DISTANT THEREON SOUTH 0° 02' EAST, 12 ½ FEET FROM THE SOUTHWEST CORNER OF LOT
2 AS SHOWN ON SAID MAP (33 M 33), THENCE FROM SAID POINT OF BEGINNING EAST
PARALLEL WITH THE SOUTH LINE OF LOTS 2, 3, 5, 6, 9, 10 AND 13, AS SHOWN ON SAID
MAP (33 M 33) TO THE DIRECT NORTHERLY EXTENSION OF THE EAST LINE OF LOT B AS
SHOWN ON SAID MAP (33 M 33); THENCE NORTH ALONG SAID EXTENSION 12 ½ FEET TO
THE SOUTH LINE OF SAID LOT 13; THENCE WEST ALONG THE SOUTH LINE OF SAID LOT 13
AND ALONG THE SOUTH LINE OF SAID LOTS 10, 9, 6, 5, 3 AND 2, 319.70 FEET TO THE WEST
LINE OF SAID CESA LANE; THENCE SOUTH 0° 02' EAST, ALONG SAID WEST LINE 12 ½ FEET
TO THE POINT OF BEGINNING.
PARCEL THREE:
LOT 4, MAP OF ANTIOCH BUSINESS CENTER, FILED JULY 14, 1947, MAP BOOK 33, PAGE 33,
CONTRA COSTA COUNTY RECORDS.
PARCEL FOUR:
LOT 1, MAP OF ANTIOCH BUSINESS CENTER, FILED JULY 14, 1947, MAP BOOK 33, PAGE 33,
CONTRA COSTA COUNTY RECORDS.
APN: 067-251-015-3, 067-252-011-1 AND 067-252-010-3-01
October 16, 2018 BOS Minutes 713
B-1
EXHIBIT B
FORM OF INCOME CERTIFICATION
TENANT INCOME CERTIFICATION
Initial Certification 1st Recertification Other:
Effective Date:
Move-in Date:
(YYYY-MM-DD)
PART I - DEVELOPMENT DATA
Property Name: Terrace Glen Apartments County: Contra Costa BIN #:
Address: ____ West 20th Street, Antioch, CA Unit Number: # Bedrooms:
PART II. HOUSEHOLD COMPOSITION
Vacant
HH
Mbr #
Last Name
First Name
Middle
Initial
Relationship to
Head
of Household
Date of Birth
(YYYY/MM//D
D)
F/T
Student
(Y or N)
Last 4 digits of
Social Security
#
1 HEAD
2
3
4
5
6
7
PART III. GROSS ANNUAL INCOME (USE ANNUAL AMOUNTS)
HH
Mbr #
(A)
Employment or Wages
(B)
Soc. Security/Pensions
(C)
Public Assistance
(D)
Other Income
TOTALS $ $ $ $
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 Passbook Rate
If over $5000 $ X 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)] $
Effective Date of Move-in Income Certification:
Household Size at Move-in Certification:
October 16, 2018 BOS Minutes 714
B-2
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)
October 16, 2018 BOS Minutes 715
B-3
PART V. DETERMINATION OF INCOME ELIGIBILITY
RECERTIFICATION ONLY:
TOTAL ANNUAL HOUSEHOLD
INCOME FROM ALL SOURCES:
From item (L) on page 1
$
Unit Meets Income
Restriction at:
60% 50%
Current Income Limit x 140%:
$
Current Income Limit per Family Size:
$
40% 30%
%
Household Income exceeds 140%
at recertification:
Yes No
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 non-optional charges)
$
Unit Meets Rent Restriction at:
60% 50% 40% 30% %
Maximum Rent Limit for this unit:
$
PART VII. STUDENT STATUS
*Student Explanation:
ARE ALL OCCUPANTS FULL TIME STUDENTS? If yes, Enter student explanation* 1 AFDC / TANF Assistance
(also attach documentation) 2 Job Training Program yes no 3 Single Parent/Dependent Child
4 Married/Joint Return
Enter 1-5 5 Former Foster Care
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.
October 16, 2018 BOS Minutes 716
B-4
SIGNATURE OF OWNER/REPRESENTATIVE
Based on the representations herein and upon the proof 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
October 16, 2018 BOS Minutes 717
B-5
INSTRUCTIONS FOR COMPLETING
TENANT INCOME CERTIFICATION
This form is to be completed by the owner or an authorized representative.
Part I - Project 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. (YYYY-MM-DD)
*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. (YYYY-MM-DD)
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
*Vacant Unit
Enter the number of bedrooms in the unit.
Check if unit was vacant on December 31 of requesting year.
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 following
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 last four digits of social security number or alien registration number for each occupant.
If tenant does not have a Social Security Number (SSN) or alien registration number, please enter the numerical birth month and
last two digits of birth year (e.g. birthday January 1, 1970, enter “0170”). If tenant has no SSN number or date of birth, please enter
the last 4 digits of the BIN.
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.
October 16, 2018 BOS Minutes 718
B-6
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 each
respective household member number from Part II. Include anticipated income only if documentation exists verifying pending
employment. If any adult states zero-income, please note “zero” in the columns of Part III.
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.
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 complete 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)
Row (L)
*Effective Date of
Income
Certification
*Household Size
at
Certification
Enter the greater of the total in Column (I) or (J)
Total Annual Household Income From all Sources Add (E) and (K) and enter the total
Enter the effective date of the income certification corresponding to the total annual
household income entered in Box L. If annual income certification is not required, this may
be different from the effective date listed in Part I.
Enter the number of tenants corresponding to the total annual household income entered in
Box L. If annual income certification is not required, this may be different from the number
of tenants listed in Part II.
October 16, 2018 BOS Minutes 719
B-7
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
Current Income Limit x 140%
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.
For recertifications only. Multiply the Current Maximum Move-in Income Limit by
140% and enter the total. 140% is based on the Federal Set-Aside of 20/50 or 40/60,
as elected by the owner for the property, not deeper targeting elections of 30%,
40%, 45%, 50%, etc. 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.
*Units Meets Income Restriction at
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.
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.
October 16, 2018 BOS Minutes 720
B-8
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 execution 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.
PART IX. SUPPLEMENTAL INFORMATION
Tenant Demographic Profile Complete for each member of the household, including minors, for move-in. Use
codes listed on supplemental form for Race, Ethnicity, and Disability Status.
Resident/Applicant Initials All tenants who wish not to furnish supplemental information should initial this
section. Parent/guardian may complete and initial for minor child(ren).
* Please note areas with asterisks are new or have been modified. Please ensure to note the changes or formats now being requested.
October 16, 2018 BOS Minutes 721
B-9
TENANT INCOME CERTIFICATION QUESTIONNAIRE
Name: Telephone Number:
_______________________________________________________ ( )
Initial Certification BIN #
Re-certification
Other Unit #
INCOME INFORMATION
Yes No MONTHLY GROSS INCOME
I am self employed. (List nature of self employment) (use net income from business)
$
I 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 receive cash contributions of gifts including rent or utility payments, on an ongoing
basis from persons not living with me.
$
I receive unemployment benefits. $
I receive Veteran’s Administration, GI Bill, or National Guard/Military
benefits/income.
$
I 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 receive Supplemental Security Income (SSI). $
I receive disability or death benefits other than Social Security.
$
I receive Public Assistance Income (examples: TANF, AFDC) $
I am entitled to receive child support payments.
I am currently receiving child support payments.
If yes, from how many persons do you receive support? ________
I am currently making efforts to collect child support owed to me. List efforts being
made to collect child support:
$
$
I receive alimony/spousal support payments $
I receive periodic payments from trusts, annuities, inheritance, retirement funds or
pensions, insurance policies, or lottery winnings.
If yes, list sources:
1)_____________________________________
2)_____________________________________
$
$
I receive income from real or personal property. (use net earned income)
$
Student financial aid (public or private, not including student loans)
Subtract cost of tuition from Aid received
$
October 16, 2018 BOS Minutes 722
B-10
Asset information
YES NO INTEREST RATE CASH VALUE
I have a checking account(s).
If yes, list bank(s)
1)
2)
%
%
$
$
I have a savings account(s)
If yes, list bank(s)
1)
2)
%
%
$
$
I have a revocable trust(s)
If yes, list bank(s)
1)
%
$
I own real estate.
If yes, provide description:
$
I own stocks, bonds, or Treasury Bills
If yes, list sources/bank names
1)
2)
3)
%
%
%
$
$
$
I have Certificates of Deposit (CD) or Money Market Account(s).
If yes, list sources/bank names
1)
2)
3)
%
%
%
$
$
$
I have an IRA/Lump Sum Pension/Keogh Account/401K.
If yes, list bank(s)
1)
2)
%
%
$
$
I have a whole life insurance policy.
If yes, how many policies
$
I have cash on hand.
$
I 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)
$
$
October 16, 2018 BOS Minutes 723
B-11
STUDENT STATUS
YES NO
Does the household consist of all persons who are full-time students (Examples: College/University, trade school,
etc.)?
Does the household consist of all persons who have been a full-time student in the previous 5 months?
Does your household anticipate becoming an all full-time student household in the next 12 months?
If you answered yes to any of the previous three questions are you:
• Receiving assistance under Title IV of the Social Security Act (AFDC/TANF/Cal Works - not SSA/SSI)
• Enrolled in a job training program receiving assistance through the Job Training Participation Act (JTPA) or
other similar program
• Married and filing (or are entitled to file) a joint tax return
• Single parent with a dependent child or children and neither you nor your child(ren) are dependent of
another individual
• Previously enrolled in the Foster Care program (age 18-24)
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) DATE
October 16, 2018 BOS Minutes 724
C-1
EXHIBIT C
FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
ANTIOCH SCATTERED SITE RENOVATION
Witnesseth that on this ____ day of ____________, 20__, the undersigned, having
borrowed certain funds from the County of Contra Costa (the “Issuer”) for the purpose of
financing the above-listed multifamily rental housing facilities does hereby certify that:
A. During the preceding twelve-months (i) each of the Projects was continually in
compliance with the Regulatory Agreements, and (ii) ____% of the units in each of the Projects
were occupied by Low Income Tenants (minimum of 40%).
B. Set forth below is certain information regarding occupancy of the Projects and as of
the date hereof.
Pinecrest
Apartments
Terrace Glen
Apartments
1. Total Units: 24 32
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 respective Project.
D. Select appropriate certification: [No unremedied default has occurred under any of
the Regulatory Agreements, the Note, Loan Agreement, the Supplemental 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.
October 16, 2018 BOS Minutes 725
C-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 November 1, 2018, between the Issuer and Antioch Recap, L.P., a
California limited partnership.
Date: ANTIOCH RECAP, L.P., a California limited
partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its sole Member/Manager
By:
Daniel Sawislak,
Executive Director
October 16, 2018 BOS Minutes 726
D-1
EXHIBIT D
FORM OF COMPLETION CERTIFICATE
The undersigned hereby certifies that the acquisition and rehabilitation of the Project
and of the Other Project was substantially completed as of ____________.
The undersigned hereby further 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;
(3) at least ninety-five percent (95%) 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; and
(4) the Borrower is in compliance with the provisions of the Regulatory Agreements and
the Loan Agreement.
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
November 1, 2018, between Antioch Recap, L.P., a California limited partnership and the
County of Contra Costa.
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its sole Member/Manager
By:
Daniel Sawislak,
Executive Director
October 16, 2018 BOS Minutes 727
E-1
EXHIBIT E
CDLAC RESOLUTION NO. 18-033
October 16, 2018 BOS Minutes 728
E-2
October 16, 2018 BOS Minutes 729
E-3
October 16, 2018 BOS Minutes 730
E-4
October 16, 2018 BOS Minutes 731
E-5
October 16, 2018 BOS Minutes 732
E-6
October 16, 2018 BOS Minutes 733
E-7
October 16, 2018 BOS Minutes 734
E-8
October 16, 2018 BOS Minutes 735
F-1
EXHIBIT F
CDLAC RESOLUTION NO. 18-090
October 16, 2018 BOS Minutes 736
F-2
October 16, 2018 BOS Minutes 737
F-3
October 16, 2018 BOS Minutes 738
F-4
October 16, 2018 BOS Minutes 739
F-5
October 16, 2018 BOS Minutes 740
F-6
October 16, 2018 BOS Minutes 741
F-7
October 16, 2018 BOS Minutes 742
F-8
October 16, 2018 BOS Minutes 743
Loan No. 1018337
- 1 -
4816-2254-1933v.2 0088288-000078
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Wells Fargo Bank, National Association
Community Lending and Investment
MAC# A0119-177
333 Market Street, 17th Floor
San Francisco, California 94105
Attention: Emily Cafuir
Loan No. 1018337
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
______________, 2018, 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
______________, 2018 (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 which is
dated as of the date hereof:
1. that certain Loan Agreement among Antioch Recap, 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/100th 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 (Antioch Scattered Site Renovation), Series 2018A 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 the terms
hereof. The Assignee is joining in the execution of this Assignment in order to evidence its acceptance
October 16, 2018 BOS Minutes 744
Loan No. 1018337
- 2 -
4816-2254-1933v.2 0088288-000078
hereof and to agree to provide notice, opportunity to cure and approval rights as more fully set forth
herein.
C. 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 (but 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 encumbrance by Borrower contained in
any of the Deed of Trust Documents.
[Remainder of Page Intentionally Left Blank]
October 16, 2018 BOS Minutes 745
Loan No. 1018337
[Antioch Scattered Site Renovation - Signature Page to
Assignment of Deed of Trust and Loan Documents]
4816-2254-1933v.2 0088288-000078
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,
a political subdivision and body corporate and politic
By: __________________________________
John Kopchik
Director, Department of Conservation and Development
October 16, 2018 BOS Minutes 746
Loan No. 1018337
[Antioch Scattered Site Renovation - Signature Page to
Assignment of Deed of Trust and Loan Documents]
4816-2254-1933v.2 0088288-000078
ASSIGNEE:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
a national banking association
By: ___________________________________
Jeff Bennett
Senior Vice President
October 16, 2018 BOS Minutes 747
Loan No. 1018337
[Antioch Scattered Site Renovation - Signature Page to
Assignment of Deed of Trust and Loan Documents]
4816-2254-1933v.2 0088288-000078
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:
ANTIOCH RECAP, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its General Partner
By: Resources for Community Development,
a California nonprofit public benefit corporation,
its sole Member/Manager
By: ________________________________
Daniel Sawislak
Executive Director
October 16, 2018 BOS Minutes 748
4816-2254-1933v.2 0088288-000078
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
)
COUNTY OF ____________________________)
On ______________________, 2018 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 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.
October 16, 2018 BOS Minutes 749
4816-2254-1933v.2 0088288-000078
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
)
COUNTY OF ____________________________)
On ______________________, 2018 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 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.
October 16, 2018 BOS Minutes 750
4816-2254-1933v.2 0088288-000078
ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
)
COUNTY OF ____________________________)
On ______________________, 2018 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 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.
October 16, 2018 BOS Minutes 751
Loan No. 1018337
A-1
4816-2254-1933v.2 0088288-000078
EXHIBIT A - PROPERTY DESCRIPTION
October 16, 2018 BOS Minutes 752
PUBLIC DISCLOSURES RELATING TO CONDUIT REVENUE OBLIGATIONS
Pursuant to California Government Code Section 5852.1, the borrower (the “Borrower”) identified
below has provided the following required information to the County of Contra Costa (the “Issuer”)
prior to the Issuer’s regular meeting (the “Meeting”) of its Board of Supervisors (the “Board”) at
which Meeting the Board will consider the authorization of conduit revenue obligations (the
“Bonds”) as identified below.
1. Name of Borrower: Antioch Recap, L.P.
2. Authority Meeting Date: October 16, 2018.
3. Name of Bond Issue / Conduit Revenue Obligations: Antioch Recap Series 2018A.
4. __ Private Placement Lender or Bond Purchaser, __ Underwriter or _X_ Financial Advisor
(mark one) engaged by the Borrower from which the Borrower obtained the following
required good faith estimates relating to the Bonds for the Borrower:
(A) The true interest cost of the Bonds, which means the rate necessary to discount
the amounts payable on the respective principal and interest payment dates to the
purchase price received for the new issue of Bonds (to the nearest ten-thousandth
of one percent): 5.3260%.
(B) The finance charge of the Bonds, which means the sum of all fees and charges
paid to third parties: $398,311.
(C) The amount of proceeds received by the public body for sale of the Bonds less the
finance charge of the bonds described in subparagraph (B) and any reserves or
capitalized interest paid or funded with proceeds of the Bonds: $10,475,441.
(D) The total payment amount, which means the sum total of all payments the
borrower will make to pay debt service on the Bonds plus the finance charge of the
Bonds described in subparagraph (B) not paid with the proceeds of the Bonds
(which total payment amount shall be calculated to the final maturity of the Bonds ):
$15,449,104.
The foregoing estimates constitute good faith estimates only. The actual principal amount
of the Bonds issued and sold, the true interest cost thereof, the finance charges thereof, the
amount of proceeds received therefrom and total payment amount with respect thereto may differ
from such good faith estimates due to a variety of factors. The actual interest rates borne by the
Bonds and the actual amortization of the Bonds will depend on market interest rates at the time
of sale thereof. Market interest rates are affected by economic and other factors beyond the
control of the County.
October 16, 2018 BOS Minutes 753
RECOMMENDATION(S):
In the matter of restructuring two HOME Investment Partnerships Act (HOME) loans and making a new
HOME loan of $1,300,000 to Antioch Recap, L.P. to acquire and rehabilitate the Antioch Scattered Site
Renovation project that consists of Pinecrest and Terrace Glen Apartments in Antioch:
1. FIND that this project is categorically exempt per Section 15301 of the California Environmental Quality
Act (CEQA);
2. APPROVE and AUTHORIZE the Conservation and Development Director, or designee, to execute legal
documents to effect the loan;
3. DIRECT the Director of Conservation and Development to file a Notice of Exemption for the Antioch
Scattered Site Renovation project 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 Exemption.
FISCAL IMPACT:
No General Fund impact. The loan will be funded with HOME Investment Partnerships Act (CFDA
#14.239) funds, which are provided to the County on a formula allocation basis through the U.S.
Department of Housing and Urban Development (HUD).
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 10/16/2018 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
Contact: Kristen Lackey, (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: October 16, 2018
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: , Deputy
cc:
C. 54
To:Board of Supervisors
From:John Kopchik, Director, Conservation & Development Department
Date:October 16, 2018
Contra
Costa
County
Subject:Approval of HOME Loan Legal Documents for the Antioch Scattered Site Renovation Project
October 16, 2018 BOS Minutes 754
BACKGROUND:
The Antioch Scattered Site Renovation project (the “Project”) consists of the acquisition and
rehabilitation of Pinecrest and Terrace Glen apartment complexes (described below). The two properties
are being combined into a single development for the purposes of financing. The two complexes
together provide a large enough project to attract a favorable interest rate on construction financing and
an adequate value on low income housing tax credits. Terrace Glen is currently owned by Resources for
Community Development (RCD) and Pinecrest is owned by a limited partnership affiliate of RCD. Both
apartment complexes have existing County HOME Investment Partnerships Act (HOME) loans.
The County actions needed to implement the proposed refinancing and rehabilitation include
restructuring the existing debt ($856,000 HOME loan on Terrace Glen and $625,000 HOME loan on
Pinecrest), loaning additional HOME funds in the amount of $1.3 million, and setting a new 55-year
term of affordability. Project specifics for each apartment complex are summarized at the end of the
Background section.
The existing loans terms are both 3% simple annual interest with a term of 55 years. The loan repayment
was deferred until the end of the term unless there was surplus cash flow in any year of operation. There
were no payments for Pinecrest and only $3,606 for Terrace Glen. Accrued interest to date for each loan
will be added to the associated outstanding principal amounts to constitute new principal amounts for
each apartment complex. The restructured loans will have a new 55-year term and carry the applicable
federal interest rate at the time of transaction closing (2.99% in October 2018) with the same deferred
payment/surplus cash flow repayment structure. The existing Regulatory Agreements that establish
affordability commitments will be modified and updated to reflect the new terms.
The new $1.3 million HOME allocation for this project was approved by the Board on June 26, 2018
(C.170) following a recommendation from the Affordable Housing Advisory Committee. As with the
restructured loans, the loan repayment is deferred for 55 years unless there is surplus cash flow in any
year of operation. This loan will bear zero percent interest in order to maximize new equity investment
in the project.
All three of the loans will be included in one development loan agreement with a 55-year term. New
Regulatory Agreements will be recorded on each property to reflect the additional HOME units resulting
from the new loan. The legal documents associated with this transaction are attached in substantially
finalized form and will be executed in a form approved by County Counsel.
In addition to the HOME loans, the project will be funded with tax-exempt bonds issued by the County
(a separate item on this October 16, 2018 Board agenda addresses the bonds), low-income housing tax
credits, and City of Antioch CDBG funds. The total development cost is $20.6 million.
The project sponsor is Antioch Recap, L.P., a limited partnership comprised of RCD GP III, LLC as the
managing general partner and Red Stone Equity Partners LLC as the tax credit equity investor. RCD is
the sole member of RCD GP III LLC, and is a well-respected non-profit developer of affordable housing
with extensive experience in Contra Costa County.
The HOME loans will be subordinate to the bond loan and the County may be requested to sign estoppel
agreements to that effect. This action of the Board includes authorization of the DCD Director to execute
estoppel and subordination agreements consistent with the subordination terms included in the
Development Loan Agreement.
Due to the high construction costs and limited revenue from the restricted rents, the total amount of the
October 16, 2018 BOS Minutes 755
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 safeguards of the investor's equity.
These safeguards essentially subordinate the County’s debt to the investor’s equity. Therefore, the
County HOME funds may not be fully secured through the value of the property. However, the HOME
program funds are granted, not loaned, to the County, so the County general fund will not have any
exposure as a result of this loan. The County structures its HOME investments as loans rather than grants
in order to maintain involvement in the financial team in the event the project experiences any serious
issues over the 55-year term.
The following is a summary of each property:
Pinecrest Apartments (1945 and 1949 Cavallo Road in Antioch)
In 2000, the County loaned $625,000 of HOME funds for acquisition and rehabilitation of this 24-unit
multifamily rental project. In consideration of the loan, 11 of the units were income and rent restricted as
set out in a County regulatory agreement. The new loan will require 3 additional HOME units. However,
all of the units are affordable due to tax credit regulations. The current rehabilitation scope of work
includes interior and exterior rehabilitation including grading, retaining wall repairs, parking lot repairs,
sewer line scoping, laundry room upgrades, and safety and accessibility upgrades.
Terrace Glen Apartments (35, 45, 101, 103 - 107 W. 20th Street in Antioch)
In 1996, the County loaned $615,000 of HOME funds for the acquisition and rehabilitation of this
32-unit multifamily rental project, and another $241,000 of HOME funds in 1998. In consideration of
the loans, 16 of the units were income and rent restricted as set out in a County regulatory agreement.
The new loan will require 5 additional HOME units. However, all of the units are affordable under tax
credit regulations. The current rehabilitation scope of work includes interior and exterior rehabilitation
including mold remediation, roof repairs, replace sewer lines, concrete repairs, and safety and
accessibility upgrades.
National Environmental Policy Act (NEPA)
HOME projects are subject to NEPA and 24 CFR Part 58 review. The NEPA review for this project is
complete and the developer must: (1) survey Pinecrest for lead-based paint and asbestos, and remediate
if necessary; (2) remove asbestos at Terrace Glen; and (3) survey Terrace Glen for lead-based paint and
remediate, if necessary. This project is categorically exempt from CEQA pursuant to Section 15301; it is
the repair of existing facilities.
CONSEQUENCE OF NEGATIVE ACTION:
Without the approval and execution of the HOME legal documents, the acquisition and rehabilitation
will not be done, and the properties will continue to suffer from deferred maintenance.
CHILDREN'S IMPACT STATEMENT:
The two apartment complexes making up the Antioch Renovation development provide 56 units of
affordable rental housing appropriate for families. This supports outcome #3: Families are Economically
Self Sufficient.
CLERK'S ADDENDUM
RELISTED to October 23, 2018.
ATTACHMENTS
Antioch Reno Combined Loan Agreement
Antioch Reno Intercreditor
October 16, 2018 BOS Minutes 756
Antioch Reno Combined Deed of Trust
Antioch Reno New HOME Loan Note
Pinecrest Restructured HOME Loan Promissory Note
Terrace Glen Restructured HOME Loan Promissory Note
Pinecrest HOME Regulatory Agreement
Terrace Glen HOME Regulatory Agreement
Pinecrest County Regulatory Agreement
Terrace Glen County Regulatory Agreement
Pinecrest Assignment Agreement
Terrace Glen Assignment
October 16, 2018 BOS Minutes 757
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DEVELOPMENT LOAN AGREEMENT
(Antioch Scattered Site Renovation)
This Development Loan Agreement (the "Agreement") is dated November 1, 2018, and is
between the County of Contra Costa, a political subdivision of the State of California (the
"County"), and Antioch Recap, 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. Borrower is acquiring from Resources for Community Development, a California
nonprofit public benefit corporation (the "Terrace Glen Seller" or "RCD") that certain real
property located at 35, 45, 101, 103, 105 and 107 W. 20th Street, and 104 and 106 W. 20th Street
in the City of Antioch, County of Contra Costa, State of California, as more particularly
described in Exhibit A-1 (the "Terrace Glen Property"). The Terrace Glen Property is improved
with thirty-two (32) units of affordable housing and attendant site improvements (the "Terrace
Glen Improvements").
C. Borrower is acquiring from Pinecrest Affordable Housing L.P., a California
limited partnership (the "Pinecrest Seller") that certain real property located at 1945 and 1949
Cavallo Road in the City of Antioch, County of Contra Costa, State of California, as more
particularly described in Exhibit A-2 (the "Pinecrest Property"). The Pinecrest Property is
improved with twenty-four (24) units of affordable housing and attendant site improvements (the
"Pinecrest Improvements ").
D. The Terrace Glen Improvements, and the Pinecrest Improvements, are
collectively referred to as the "Improvements." The Terrace Glen Property, and the Pinecrest
Property, are collectively referred to as the "Property." The Improvements and the Property are
collectively referred to as the "Development."
E. The Improvements are in need of rehabilitation. To maximize the amount of
rehabilitation that may be performed on the Improvements and to provide for a common scheme
of financing for the Development, the rehabilitation will be financed with a single issuance by
the County of Tax-Exempt Multifamily Housing Revenue Bonds, and a single allocation of low
income housing tax credits from the California Tax Credit Allocation Committee ("TCAC").
F. The County previously provided loans to the Sellers as described in more detail in
Section 2.1 below. In support of the rehabilitation of the Improvements and the common scheme
of financing, the County has agreed to restructure the Original County Loans and consent to their
assignment to Borrower, and provide the New County Loan to Borrower. The New County
Loan is more particularly described in Section 2.2 below.
G. The Restructured County Loans and New County Loan are funded with 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
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("HOME Funds"), which must be used in accordance with 24 C.F.R. Part 92 (the "HOME
Regulations").
H. The sum of the combined Restructured County Loans and New County Loan is
Three Million Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962)
(the "Combined County Loan"). The Combined County Loan is evidenced by the Notes, the
Regulatory Agreements, and the Intercreditor Agreement, and is secured by the Deed of Trust.
I. Due to the assistance provided Borrower through the Combined County Loan, the
County is designating thirty-five (35) units of affordable housing as assisted by the County (the
"County-Assisted Units"). The County-Assisted Units are comprised of twenty-one (21) units at
the Terrace Glen Improvements, and fourteen (14) units at the Pinecrest Improvements.
J. Antioch has found the Development exempt from the requirements of the
California Environmental Quality Act (Public Resources Code Sections 21000 et seq.)
("CEQA") as the rehabilitation of existing improvements, and the County has found the
Development exempt from the requirements of CEQA as the rehabilitation of existing
improvements.
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) "Accessibility Requirements" has the meaning set forth in Section 3.9
below.
(b) "Agreement" means this Development Loan Agreement.
(c) "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 Permanent 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;
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(iv) fees paid to the Issuer with respect to the Bonds;
(v) 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;
(vi) the Partnership/Asset Fee;
(vii) 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;
(viii) premiums for insurance required for the Improvements to satisfy
the requirements of any lender of Approved Financing;
(ix) utility services not paid for directly by tenants, including water,
sewer, and trash collection;
(x) maintenance and repair expenses and services;
(xi) any annual license or certificate of occupancy fees required for
operation of the Development;
(xii) security services;
(xiii) advertising and marketing;
(xiv) cash deposited into the Replacement Reserve Account in the
amount set forth in Section 4.2(a);
(xv) 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);
(xvi) payment of any previously unpaid portion of Developer F ee
(without interest), not to exceed the amount set forth in Section 3.18;
(xvii) extraordinary operating costs specifically approved in writing by
the County;
(xviii) 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
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account, any amount expended from a reserve account, and any capital cost associated with the
Development.
(d) "Annual Payment" has the meaning in Section 2.10(a).
(e) "Antioch" means the City of Antioch, California, a municipal corporation.
(f) "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.
(g) "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 rehabilitation of the Development:
(i) the Restructured Antioch Loan;
(ii) County of Contra Costa Multifamily Housing Revenue Bonds
(Antioch Scattered Site Renovation) Series 2018A issued by the County of Contra Costa (the
"Issuer") in the approximate amount of Ten Million Four Hundred Seventy-Five Thousand Four
Hundred Forty-One Dollars ($10,475,441) (the "Bonds"), that are purchased by the Bank and the
sale proceeds of which are loaned to Borrower (the "Bank Loan") which will convert to a
permanent loan in the approximate amount of Four Million Six Hundred Eighty Thousand
Dollars ($4,680,000) (the "Permanent Loan");
(iii) the Low Income Housing Tax Credit investor equity funds in the
approximate amount of Six Million Eight Hundred Sixty-Six Thousand Eight Hundred Seventy-
Six Dollars ($6,866,876) (the "Tax Credit Investor Equity") provided by the Investor Limited
Partner;
(iv) the loan from RCD of Development reserves in the approximate
amount of Two Hundred Five Thousand Nine Hundred Dollars ($205,900) (the "Reserve Loan");
and
(v) the capital contribution from Borrower's general partner in the
approximate amount of Five Hundred Forty Thousand Three Hundred Forty-Four Dollars
($540,344,) (the "GP Capital Contribution").
(h) "Assignment Agreements" means collectively, the Pinecrest Assignment
Agreement and the Terrace Glen Assignment Agreement.
(i) "Available Net Proceeds" means the result obtained by multiplying the
Net Proceeds of Permanent Financing by 0.75.
(j) "Bank" means Well Fargo Bank, N.A., a national banking association, and
its successors and assigns.
(k) "Bank Loan" has the meaning set forth in Section 1.1(g)(ii).
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(l) "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.
(m) "Bonds" has the meaning set forth in Section 1.1(g)(ii).
(n) "Borrower" has the meaning set forth in the first paragraph of this
Agreement.
(o) "CEQA" has the meaning set forth in Paragraph J of the Recitals.
(p) "Closing" means the date that Borrower acquires the Property and the
grant deeds evidencing such acquisition are recorded in the Official Records.
(q) "Combined County Loan" has the meaning set forth in Paragraph H of the
Recitals.
(r) "Commencement of Construction" has the meaning set forth in
Section 3.5.
(s) "Completion Date" means the date a final certificate of occupancy, or
equivalent document is issued by Antioch to certify that the Development may be legally
occupied.
(t) "Construction Plans" means all construction documentation upon which
Borrower and Borrower's general contractor rely in rehabilitating 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").
(u) "County" has the meaning set forth in the first paragraph of this
Agreement.
(v) "County-Assisted Units" has the meaning set forth in Paragraph I of the
Recitals.
(w) "County Loan Prorata Percentage" means the result, expressed as a
percentage, obtained by dividing the Combined County Loan minus any Special County Loan
Repayment by the sum of (1) the Combined County Loan minus any Special County Loan
Repayment, and (2) the Restructured Antioch Loan minus any Special City Loan Repayment.
(x) "County Special Repayment Prorata Percentage" means the result,
expressed as a percentage, obtained by dividing the Combined County Loan by the sum of (1)
the Combined County Loan and (2) the Restructured Antioch Loan.
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(y) "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, North
American Title Company, as trustee, and the County, as beneficiary, that will encumber the
Property to secure repayment of the Combined County Loan and performance of the covenants
of the Loan Documents.
(z) "Default Rate" means the lesser of the maximum rate permitted by law
and ten percent (10%) per annum.
(aa) "Developer Fee" has the meaning set forth in Section 3.18.
(bb) "Development" has the meaning set forth in Paragraph D of the Recitals.
(cc) "Eligible Household" means a household qualified to occupy a HOME-
Assisted Unit pursuant to the Terrace Glen HOME Regulatory Agreement and/or the Pinecrest
HOME Regulatory Agreement.
(dd) "Event of Default" has the meaning set forth in Section 6.1.
(ee) "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.
(ff) "Final Cost Certification" has the meaning set forth in Section 4.3.
(gg) "Final Development Cost" means the total of the cost of acquisition and
rehabilitation of the Development as shown on the Final Cost Certification.
(hh) "GP Capital Contribution" has the meaning set forth in Section 1.1(g)(v).
(ii) "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 or other rental 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;
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(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.
(jj) "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.
(kk) "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.
(ll) "Hazardous Materials Law" means any 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.
(mm) "HOME-Assisted Units" means the HOME-Assisted Units as defined in
the Terrace Glen HOME Regulatory Agreement and the HOME-Assisted Units as defined in the
Pinecrest HOME Regulatory Agreement.
(nn) "HOME Funds" has the meaning set forth in Paragraph G of the Recitals.
(oo) "HOME Regulations" has the meaning set forth in Paragraph G of the
Recitals.
(pp) "Housing Authority" means the Housing Authority of Contra Costa
County.
(qq) "HUD" has the meaning set forth in Paragraph G of the Recitals.
(rr) "Improvements" has the meaning set forth in Paragraph D of the Recitals.
(ss) "Intercreditor Agreement" means that certain intercreditor agreement of
even date herewith entered into by and among Antioch, the County, and Borrower related to the
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Restructured Antioch Loan, and the Combined County Loan to be recorded against the property.
(tt) "Investor Limited Partner" means, RSEP Holding, LLC, a Delaware
limited liability company.
(uu) "Issuer" has the meaning set forth in Section 1.1(g)(ii).
(vv) "Lenders' Share of Residual Receipts" means seventy-five percent (75%)
of Residual Receipts.
(ww) "Loan Documents" means this Agreement, the Notes, the Regulatory
Agreements, the Intercreditor Agreement, and the Deed of Trust.
(xx) "NEPA" has the meaning set forth in Paragraph K of the Recitals.
(yy) "Net Proceeds of Permanent Financing" means the amount by which
Permanent Financing exceeds the Final Development Costs.
(zz) "New County Loan" has the meaning set forth in Section 2.2(c).
(aaa) "New Note" has the meaning set forth in Section 2.2(c).
(bbb) "Notes" means collectively, the New Note, the Restructured Terrace Glen
Note, and the Restructured Pinecrest Note.
(ccc) "Official Records" means the official records of Contra Costa County.
(ddd) "Operating Reserve Account" has the meaning set forth in Section 4.2(b).
(eee) "Original County Loans" means collectively, the Original Terrace Glen
Loan and the Original Pinecrest Loan.
(fff) "Original Pinecrest Deed of Trust" has the meaning set forth in Section
2.1(b).
(ggg) "Original Pinecrest Intercreditor Agreement" has the meaning set forth in
Section 2.1(b).
(hhh) "Original Pinecrest Loan" has the meaning set forth in Section 2.1(b).
(iii) "Original Pinecrest Loan Agreement" has the meaning set forth in Section
2.1(b).
(jjj) "Original Pinecrest Note" has the meaning set forth in Section 2.1(b).
(kkk) "Original Pinecrest Regulatory Agreement" has the meaning set forth in
Section 2.1(b).
(lll) "Original Terrace Glen Borrower" means Terrace Glen Partners, L.P., a
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California limited partnership.
(mmm) "Original Terrace Glen Deed of Trust" has the meaning set forth in
Section 2.1(a).
(nnn) "Original Terrace Glen Loan" has the meaning set forth in Section 2.1(a).
(ooo) "Original Terrace Glen Loan Agreement" has the meaning set forth in
Section 2.1(a).
(ppp) "Original Terrace Glen Note" has the meaning set forth in Section 2.1(a).
(qqq) "Original Terrace Glen Regulatory Agreement" has the meaning set forth
in Section 2.1(a).
(rrr) "Original Terrace Glen Intercreditor Agreement" has the meaning set forth
in Section 2.1(a).
(sss) "Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated on or about November 1, 2018, that governs the operation and
organization of Borrower as a California limited partnership.
(ttt) "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 the 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 3.19.
(uuu) "Permanent Conversion" means the date the Bank Loan converts to the
Permanent Loan.
(vvv) "Permanent Financing" means the sum of the following amounts: (i) the
Permanent Loan; (ii) the Combined County Loan; (iii) the Restructured Antioch Loan; (iv) the
Reserve Loan; (v) the Tax Credit Investor Equity; and (vi) the GP Capital Contribution.
(www) "Permanent Loan" has the meaning set forth in Section 1.1(g)(ii).
(xxx) "P inecrest Assignment Agreement" means the Assignment, Assumption
and Consent Agreement dated September 30, 2018, by and among the Pinecrest Seller, the
County, and Borrower, pursuant to which the Pinecrest Seller is assigning the Original Pinecrest
Loan to Borrower and Borrower is assuming the Original Pinecrest Loan, as consented to by the
County.
(yyy) "Pinecrest 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 County-Assisted Units located
in the Pinecrest Improvements, to be recorded against the Pinecrest Property.
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(zzz) "Pinecrest HOME 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 County-Assisted Units located in
the Pinecrest Improvements, to be recorded against the Pinecrest Property.
(aaaa) "Pinecrest Improvements" has the meaning set forth in Paragraph C of the
Recitals.
(bbbb) "Pinecrest Property" has the meaning set forth in Paragraph C of the
Recitals.
(cccc) "Pinecrest Seller" has the meaning set forth in Paragraph C of the Recitals.
(dddd) "Property" has the meaning set forth in Paragraph D of the Recitals.
(eeee) "RCD" has the meaning set forth in Paragraph B of the Recitals.
(ffff) "Regulatory Agreements" means the Terrace Glen HOME Regulatory
Agreement, the Terrace Glen County Regulatory Agreement, the Pinecrest HOME Regulatory
Agreement, and the Pinecrest County Regulatory Agreement.
(gggg) "Rehabilitation Standards" mean the Minimum Multi-Family Housing
Rehabilitation Standards dated March 2017 and prepared by the County.
(hhhh) "Rental Shortfall Due Date" has the meaning set forth in Section 2.10(c).
(iiii) "Rental Shortfall Payment" has the meaning set forth in Section 2.10(c).
(jjjj) "Replacement Reserve Account" has the meaning set forth in Section
4.2(a).
(kkkk) "Reserve Loan" has the meaning set forth in Section 1.1(g)(iv).
(llll) "Residual Receipts" means for each calendar year, the amount by which
Gross Revenue exceeds Annual Operating Expenses.
(mmmm) "Restructured Antioch Loan" means collectively, (i) the Eight Hundred
Seventy Thousand Dollars ($870,000) loan from Antioch to the Pinecrest Seller as assigned to
and assumed by Borrower, and (ii) the One Million Three Hundred Ninety-Seven Thousand Six
Hundred Twenty-Five Dollars ($1,397,625) loan from Antioch to the Terrace Glen Seller as
assigned to and assumed by Borrower, both restructured so that the new combined principal
amount is Three Million Five Hundred Twenty-Nine Thousand Six Hundred Thirty-Eight
Dollars ($3,529,638).
(nnnn) "Restructured County Loans" means the Restructured Terrace Glen Loan
and the Restructured Pinecrest Loan, with a combined principal balance of Two Million Three
Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($2,370,962).
(oooo) "Restructured Pinecrest Loan" has the meaning set forth in Section 2.2(b).
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(pppp) "Restructured Pinecrest Note" has the meaning set forth in Section 2.2(b).
(qqqq) "Restructured Terrace Glen Loan" has the meaning set forth in Section
2.2(a).
(rrrr) "Restructured Terrace Glen Note" has the meaning set forth in Section
2.2(a).
(ssss) "Retention Amount" means Twenty Thousand Dollars ($20,000) of the
New County Loan, the disbursement of which is described in Section 2.9.
(tttt) "Sellers" means collectively the Terrace Glen Seller and the Pinecrest
Seller.
(uuuu) "Senior Loan" has the meaning set forth in Section 2.7.
(vvvv) "Special City Loan Payment" has the meaning set forth in the Intercreditor
Agreement.
(wwww) "Special County Loan Payment" has the meaning in Section 2.8(b).
(xxxx) "Statement of Residual Receipts" means an itemized statement of Residual
Receipts.
(yyyy) "Tax Credit Investor Equity" has the meaning set forth in
Section 1.1(g)(iii).
(zzzz) "TCAC" has the meaning set forth in Paragraph E of the Recitals .
(aaaaa) "Tenant" means the tenant household that occupies a unit in the
Development.
(bbbbb) "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.
(ccccc) "Terrace Glen Assignment Agreement" means the Assignment,
Assumption and Consent Agreement dated September 30, 2018, by and among the Terrace Glen
Seller, the County, and Borrower, pursuant to which the Terrace Glen Seller is assigning the
Original Terrace Glen Loan to Borrower and Borrower is assuming the Original Terrace Glen
Loan, as consented to by the County.
(ddddd) "Terrace Glen 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 County-Assisted Units located
in the Terrace Glen Improvements, to be recorded against the Terrace Glen Property.
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(eeeee) "Terrace Glen HOME 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 County-Assisted Units located in
the Terrace Glen Improvements, to be recorded against the Terrace Glen Property.
(fffff) "Terrace Glen Improvements" has the meaning set forth in Paragraph B of
the Recitals.
(ggggg) "Terrace Glen Property" has the meaning set forth in Paragraph B of the
Recitals.
(hhhhh) "Terrace Glen Seller" has the meaning set forth in Paragraph B of the
Recitals.
(iiiii) "Transfer" has the meaning set forth in Section 6.1 of the Regulatory
Agreements.
Section 1.2 Exhibits
The following exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A-1: Legal Description of the Terrace Glen Property
Exhibit A-2: Legal Description of the Pinecrest Property
Exhibit B: Approved Development Budget
Exhibit C: NEPA Mitigation Requirements
ARTICLE 2 LOAN PROVISIONS
Section 2.1 Overview of Original Development Loans.
(a) Original Terrace Glen Loan. The County made a loan of Six Hundred
Fifteen Thousand Dollars ($615,000) in HOME Funds to the Original Terrace Glen Borrower on
November 4, 1996, which loan was increased to Eight Hundred Fifty-Six Thousand Dollars
($856,000) on August 5, 1998, as assigned to the Terrace Glen Seller (the "Original Terrace Glen
Loan"). The Original Terrace Glen Loan was evidenced by that certain HOME Loan Agreement
dated November 4, 1996, between the County and the Original Terrace Glen Borrower as
amended by a First Amendment to HOME Loan Agreement dated August 5, 1998 (the "Original
Terrace Glen Loan Agreement") and that certain promissory note executed by The Original
Terrace Glen Borrower for the benefit of the County dated November 4, 1996, as superseded by
that certain promissory note dated August 5, 1998 in the amount of Eight Hundred Fifty-Six
Thousand Dollars ($856,000) (the "Original Terrace Glen Note"). The Original Terrace Glen
Loan was secured against the Terrace Glen Property by a Deed of Trust and Security Agreement
dated August 5, 1998, executed by the Original Terrace Glen Borrower and recorded in the
Official Records on August 25, 1998, as Instrument No. 98-202838 (the "Original Terrace Glen
Deed of Trust"). In connection with the Original Terrace Glen Loan, The Original Terrace Glen
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Borrower and the County entered into a Regulatory Agreement and Declaration of Restrictive
Covenants dated November 4, 1996, recorded in the Official Records against the Terrace Glen
Property on November 6, 1996, as Instrument No. 96-210492, as amended by a First
Amendment to Regulatory Agreement dated August 5, 1998, recorded in the Official Records
against the Terrace Glen Property on August 25, 1998, as Instrument No. 98-202840 (the
"Original Terrace Glen Regulatory Agreement"). The Original Terrace Glen Loan was also
evidenced by an Intercreditor Agreement by and among the County, Antioch, and the Original
Terrace Glen Borrower dated, November 4, 1996, recorded in the Official Records against the
Terrace Glen Property on November 6, 1996, as Instrument No. 96-210496, as amended by a
First Amendment to Intercreditor Agreement dated August 5, 1998, recorded in the Official
Records against the Terrace Glen Property on August 25, 1998, as Instrument No. 98-202844
(the "Original Terrace Glen Intercreditor Agreement").
(b) Original Pinecrest Loan. The County made a loan of Six Hundred
Twenty-Five Thousand Dollars ($625,000) in HOME Funds to the Pinecrest Seller on September
18, 2000 (the "Original Pinecrest Loan"). The Original Pinecrest Loan was evidenced by that
certain HOME Loan Agreement dated September 18, 2000, between the County and the
Pinecrest Seller, as amended by a First Amendment to HOME Loan Agreement dated November
1, 2000 (the "Original Pinecrest Loan Agreement") and that certain promissory note executed by
the Pinecrest Seller for the benefit of the County dated September 18, 2000 (the "Original
Pinecrest Note"). The Original Pinecrest Loan was secured against the Pinecrest Property by a
Deed of Trust with Assignment of Rents and Security Agreement dated September 18, 2000,
executed by the Pinecrest Seller and recorded in the Official Records on September 21, 2000, as
Instrument No. 2000-204511 (the "Original Pinecrest Deed of Trust"). In connection with the
Original Pinecrest Loan, the Pinecrest Seller and the County entered into a Regulatory
Agreement and Declaration of Restrictive Covenants dated September 18, 2000, recorded in the
Official Records against the Pinecrest Property on September 21, 2000, as Instrument No. 2000-
204510 (the "Original Pinecrest Regulatory Agreement"). The Original Pinecrest Loan was also
evidenced by an Intercreditor Agreement by and among the County, Antioch, and the Pinecrest
Seller dated September 18, 2000, recorded in the Official Records against the Pinecrest Property
on September 21, 2000, as Instrument No. 2000-204507 (the "Original Pinecrest Intercreditor
Agreement").
(c) Assignment and Assumption of Original County Loans. Concurrently
with the execution of this Agreement, Borrower is assuming the Original County Loans from the
Sellers, pursuant to the Assignment Agreements.
Section 2.2 Combined County Loan.
(a) Terrace Glen Loan Amount. The outstanding principal balance of the
Original Terrace Glen Loan as of the date of this Agreement is Eight Hundred Fifty-Six
Thousand Dollars ($856,000). As of the date of this Agreement : (i) the Original Terrace Glen
Loan has accrued interest from the date of disbursement at a simple interest rate of three percent
(3%). The interest accrued to date on the Original Terrace Glen Loan is Five Hundred Fifty-Six
Thousand Eight Hundred Twenty- Seven Dollars ($556,827), which amount is being capitalized
into the outstanding principal balance on the Original Terrace Glen Loan for a total of One
Million Four Hundred Twelve Thousand Eight Hundred Twenty-Seven Dollars ($1,412,827) (the
" Restructured Terrace Glen Loan"). The Restructured Terrace Glen Loan is evidenced by a
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promissory note executed by Borrower in the amount of the Restructured Terrace Glen Loan for
the benefit of the County (the "Restructured Terrace Glen Note").
(b) Pinecrest Loan Amount. The outstanding principal balance of the Original
Pinecrest Loan as of the date of this Agreement is Six Hundred Twenty-Five Thousand Dollars
($625,000). As of the date of this Agreement the Original Pinecrest Loan has accrued interest
from the date of disbursement at a simple interest rate of three percent (3%). The interest
accrued to date on the Original Pinecrest Loan is Three Hundred Thirty-Three Thousand One
Hundred Thirty-Five Dollars ($333,135), which amount is being capitalized into the outstanding
principal balance on the Original Pinecrest Loan for a total of Nine Hundred Fifty-Eight
Thousand One Hundred Thirty-Five Dollars ($958,135) (the "Restructured Pinecrest Loan").
The Restructured Pinecrest Loan is evidenced by a promissory note executed by Borrower in the
amount of the Restructured Pinecrest Loan for the benefit of the County (the "Restructured
Pinecrest Note").
(c) New County Loan. Through this Agreement, the County is loaning
Borrower One Million Three Hundred Thousand Dollars ($1,300,000) in HOME Funds (the
"New County Loan"), evidenced by a promissory note executed by Borrower in the amount of
the New County Loan for the benefit of the County (the "New Note").
(d) Combined County Loan. The Combined County Loan equals the sum of
the Restructured County Loans and the New County Loan for a total amount of Three Million
Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962). Upon
satisfaction of the conditions set forth in Section 2.8 and Section 2.9 of this Agreement, the
County shall lend to Borrower the Combined County Loan for the purposes set forth in Section
2.5 of this Agreement. Borrower's obligation to repay the Combined County Loan is evidenced
by the Notes.
Section 2.3 New County Loan Documents.
(a) Loan Agreement. This Agreement replaces the following documents in
their entirety: the Original Pinecrest Loan Agreement, and the Original Terrace Glen Loan
Agreement, and such documents are deemed terminated hereby.
(b) Promissory Notes. At Closing, the County is cancelling the Original
Pinecrest Note, and the Original Terrace Glen Note, and Borrower will execute the Notes.
(c) Deed of Trust. At Closing, the County is reconveying the Original
Terrace Glen Deed of Trust, and the Original Pinecrest Deed of Trust, and recording the Deed of
Trust as a lien against the Property.
(d) Regulatory Agreements; Affordability Notice. At Closing, the County is
terminating the Original Pinecrest Regulatory Agreement, and the Original Terrace Glen
Regulatory Agreement, and recording the Regulatory Agreements against the Property.
(e) Intercreditor Agreements. At Closing, the County is terminating the
Original Pinecrest Intercreditor Agreement, and the Original Terrace Glen Intercreditor
Agreement, and recording the Intercreditor Agreement against the Property.
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Section 2.4 Interest on Loans.
(a) Restructured Terrace Glen Loan. Subject to the provisions of subsection
(d) below, interest accrues on the outstanding principal balance of the Restructured Terrace Glen
Loan at a rate of interest equal to [_________] compounding annually, commencing on the date
of the Restructured Terrace Glen Note. It is the intent that the interest rate stated in this Section
2.4(a) is the Applicable Federal Rate applicable to long-term loans with annual compounding, as
calculated in accordance with Internal Revenue Code Section 1274(d) as of the date of the
Restructured Terrace Glen Note.
(b) Restructured Pinecrest Loan. Subject to the provisions of subsection (d)
below, interest accrues on the outstanding principal balance of the Restructured Pinecrest Loan at
a rate of interest equal to [____________] compounding annually, commencing on the date of
the Restructured Pinecrest Note. It is the intent that the interest rate stated in this Section 2.4(b)
is the Applicable Federal Rate applicable to long-term loans with annual compounding, as
calculated in accordance with Internal Revenue Code Section 1274(d) as of the date of the
Restructured Pinecrest Note.
(c) New County Loan. Subject to the provisions of subsection (d) below, the
New County Loan will not bear interest.
(d) Default Interest. Upon the occurrence of an Event of a Default, interest on
the outstanding principal balance of the Combined County Loan will accrue at the Default Rate,
beginning on the date of such occurrence and continuing until the date the Combined County
Loan is repaid in full or the Event of Default is cured.
Section 2.5 Use of New County Loan.
(a) Borrower shall use the New County Loan for permits, fees, and
construction costs, in amounts consistent with the Approved Development Budget. Use of the
New County 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 may not use the New County Loan for any other purposes
without the prior written consent of the County.
Section 2.6 Security.
In consideration of the Combined County Loan, Borrower shall (i) secure its obligation to
repay the Combined County Loan, as evidenced by the Notes, by executing the Deed of Trust,
and cause or permit it to be recorded as a lien against the Property, junior to the Bank Loan (and
upon Permanent Conversion, to the Permanent Loan) pursuant to Section 2.7 below, senior to the
Reserve Loan, and equal in lien priority to the Restructured Antioch Loan pursuant to the
Intercreditor Agreement, and (ii) execute the Regulatory Agreements, and the Intercreditor
Agreement, and cause or permit them to be recorded against the Property.
Section 2.7 Subordination.
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(a) Any agreement by the County to subordinate the Deed of Trust and/or
Regulatory Agreements to an encumbrance securing and/or evidencing the Bank Loan, the
Permanent Loan, or any loan obtained by Borrower to refinance the Bank Loan (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.
(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 Combined County Loan is effective
only during the original term of the Senior Loan and any 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 Director – Department of
Conservation and Development that the conditions in Subsection (a) have been satisfied, the
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
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entered into between HUD and Borrower, pursuant to a form of subordination agreement
provided by HUD and approved by the County.
Section 2.8 Conditions Precedent to Disbursement of New County Loan for
Construction.
Until the conditions set forth in Section 2.9 have been met, the disbursements made pursuant
to this Agreement may not exceed One Million Two Hundred Eighty Thousand Dollars
($1,280,000). The County is not obligated to disburse any portion of the New County 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 New County Loan;
(c) Borrower has delivered to the County a copy of a corporate resolution
authorizing Borrower to obtain the Combined County 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 4.13 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 Combined County 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. 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;
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(i) All environmental review necessary for the rehabilitation 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 New County
Loan, together with other funds or firm commitments for funds that Borrower has obtained in
connection with the rehabilitation of the Development, are not less than the amount the County
determines is necessary to pay for the rehabilitation 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
rehabilitation of the Development;
(l) The County has received and approved the Bid Package for the
subcontractors for the rehabilitation of the Development pursuant to Section 3.2 below;
(m) The County has received and approved the general contractor's
construction contract that Borrower has entered or proposed to enter for the rehabilitation 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 the equity financings that comprise the
Approved Financing described in Section 1.1(g) 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) Borrower has provided the County a certification from the Development
architect or qualified accessibility specialist that the construction plans are in conformance with
the Accessibility Requirements;
(r) The County has received fully executed copies of the RAD Delayed
Conversion Agreements between Borrower and the Housing Authority governing the
commitment of project-based Section 8 rental assistance through the Rental Assistance
Demonstration Program by the Housing Authority for twelve (12) units in the Terrace Glen
Improvements and nine (9) units in the Pinecrest Improvements;
(s) The County has received fully executed copies of the Agreement to Enter
Housing Assistance Payment Contracts between Borrower and the Housing Authority governing
the commitment of project-based Section 8 rental assistance for four (4) units in the Terrace Glen
Improvements and three (3) units in the Pinecrest Improvements by the Housing Authority;
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(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 2.8(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 Borrower's architect reasonably acceptable to the 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 2.9 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 County-Assisted Units; (ii)
and the unit address, unit size, rent amount and utility allowance for all County-Assisted Units;
(b) The County has received a draft 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, Tenant
Selection Plan, and Social Services Plan as defined in the Regulatory Agreements;
(g) The County has received from Borrower evidence of marketing for any
vacant County 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;
(h) 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)(9)
of the Pinecrest HOME Regulatory Agreement and Section 4.6(b)(9) of the Terrace Glen HOME
Regulatory Agreement, and MBE/WBE requirements;
(i) If Borrower was required to comply with relocation requirements as set
forth in Section 3.10 below, the County has received from Borrower evidence of compliance
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with all applicable relocation requirements;
(j) 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;
(k) If Borrower is required to pay prevailing wages under the Davis-Bacon
Act (40 U.S.C. 3141-3148), 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;
(l) The County has received from Borrower evidence of compliance with all
NEPA mitigation requirements as set forth in Exhibit C ;
(m) The County has received fully executed copies of the Housing Assistance
Payment Contracts between Borrower and the Housing Authority governing the provision of
project-based Section 8 rental assistance for four (4) units in the Terrace Glen Improvements and
three (3) units in the Pinecrest Improvements by the Housing Authority;
(n) The County has received fully executed copies of the Rental Assistance
Demonstration Housing Assistance Payment Contracts between Borrower and the Housing
Authority governing the provision of project-based Section 8 rental assistance by the Housing
Authority for twelve (12) units in the Terrace Glen Improvements and nine (9) units in the
Pinecrest Improvements ; and
(o) The County has received a written draw request from Borrower, including
certification that the condition set forth in Section 2.8(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 2.10 Repayment Schedule.
(a) Annual Payments of Combined County Loan. Commencing on June 1,
2020 and on June 1 of each year thereafter during the Term, Borrower shall make a Combined
County Loan payment in an amount equal to the County Loan Prorata Percentage of the Lenders'
Share 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 Combined County Loan from Net Proceeds of
Permanent Financing. 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 Combined County Loan, an amount equal to the result obtained by
multiplying the County Special Repayment Prorata Percentage by the Available Net Proceeds
(the "Special County Loan Payment"). No later than one hundred eighty (180) days following
completion of rehabilitation 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. The County shall approve or disapprove Borrower's determination of
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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.
(c) Special Repayment of Combined County Loan for Failure to Lease. If on
or before the Rental Shortfall Due Date, Borrower fails to cause each of the HOME-Assisted
Units be rented to and occupied by an Eligible Household in accordance with Section 2.1 of the
Pinecrest HOME Regulatory Agreement and/or Section 2.1 of the Terrace Glen HOME
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-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 of the HOME Funds
portion of the New County Loan and the denominator of which is the number of HOME-
Assisted Units.
(iii) Interest on the Rental Shortfall Payment will accrue in accordance
with Section 2.4(c) 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 Combined County Loan. Borrower shall pay all
outstanding principal and accrued interest on the Combined County Loan, in full, on the earliest
to occur of: (i) any Transfer other than as permitted pursuant to Section 6.1 of the Regulatory
Agreements; (ii) an Event of Default; and (iii) the expiration of the Term.
(e) Prepayment. Borrower may prepay the Combined County Loan at any
time without premium or penalty. However, the Regulatory Agreements and the Deed of Trust
(as security for the Regulatory Agreement) will remain in effect for the entire Term, regardless
of any prepayment or Transfer.
Section 2.11 Reports and Accounting of Residual Receipts.
(a) Borrower shall keep and maintain at the principal place of business of
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:
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(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, 2019 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
Borrower's financial records for the relevant period, which statement must confirm that
Borrower's calculation of the Lenders' Share of Residual 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.
(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 Combined County 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 2.12 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 Combined
County Loan. Following recordation of the Deed of Trust, the sole recourse of the County with
respect to the principal of, or interest on, the Notes 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 Notes, or impairs the right of County to assert the unpaid principal amount of the Notes 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 Notes. Nothing
contained herein is intended to relieve Borrower of its obligation to indemnify the County under
the Loan Documents, 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.
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ARTICLE 3 REHABILITATION OF THE DEVELOPMENT
Section 3.1 Permits and Approvals.
Borrower shall obtain all permits and approvals necessary for the commencement of
rehabilitation of the Development no later than November 15, 2018, or such later date that the
County approves in writing.
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 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. 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
rehabilitation of the Development is to provide that at least ten percent (10%) of the costs
incurred will be payable only upon completion of the rehabilitation, subject to early release of
retention for specified subcontractors upon approval by the County. The construction contract
will include all applicable HOME requirements set forth in Section 4.6 of the Pinecrest HOME
Regulatory Agreement and Section 4.6 of the Terrace Glen HOME 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.
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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 rehabilitation of the Development in an amount equal to one hundred percent (100%) of
the scheduled cost of the rehabilitation of the Development. Such bonds must name the County
as a co-obligee.
Section 3.5 Commencement of Construction.
Borrower shall cause the Commencement of Construction of the Development to occur
no later than December 1, 2018, 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 rehabilitation of the
Development in the notice to proceed issued by Borrower to Borrower's general contractor.
Section 3.6 Completion of Construction.
Borrower shall diligently prosecute rehabilitation of the Development to completion, and
shall cause the rehabilitation of the Development to be completed no later than December 31,
2019, or such later date that the County approves in writing.
Section 3.7 Changes; Construction Pursuant to Plans and Laws.
(a) Changes. Borrower shall rehabilitate the Development in conformance
with (i) the plans and specifications approved by the building department of Antioch, 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 Antioch. 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 Fifty Thousand Dollars ($150,000) or ten percent
(10%) of the Combined County 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 do es 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
federal, state, county or municipal governments or agencies now in force or that may be enacted
hereafter;
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(ii) the HOME Regulations including the property standards set out in
24 C.F.R. 92.251 as implemented by Section 5.6 of the Pinecrest HOME Regulatory Agreement
and Section 5.6 of the Terrace Glen HOME Regulatory Agreement ;
(iii) 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 ;
(iv) the Rehabilitation Standards provided by the County; and
(v) 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.
(i) To the extent required by Development funding sources, Borrower
shall cause rehabilitation of the Development to be in compliance with the prevailing wage
requirements of the federal Davis-Bacon Act (40 U.S.C. 3141-3148).
(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 the prevailing wage provisions of the federal Davis-Bacon Act and
implementing rules and regulations in connection with the rehabilitation of the Development or
any other work undertaken or in connection with the Property. This obligation to indemnify
survives termination of this Agreement, repayment of the Combined County 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 rehabilitation 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;
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(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.;
(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 rehabilitating 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 rehabilitation 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 rehabilitation of the Development unless
registered with the DIR pursuant to California Labor Code Section 1725.5; and
(B) the rehabilitation 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 rehabilitation of the
Development or any other work undertaken or in connection with the Property. This obligation
to indemnify survives termination of this Agreement, repayment of the Combined County Loan,
and the reconveyance of the Deed of Trust.
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Section 3.9 Accessibility.
(a) Borrower shall cause the Development to be constructed and operated at
all times in compliance with all applicable federal, state, and local disabled persons accessibility
requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the
California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of
1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities
Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations,
which relate to disabled persons access (collectively, the "Accessibility Requirements ").
(b) In compliance with the Accessibility Requirements, if the rehabilitation is
substantial as defined in 24 C.F.R. 8.23(a): (i) a minimum of one (2) units of the Pinecrest
Improvements, and two (2) units of the Terrace Glen Improvements, must be rehabilitated to be
fully accessible to households with a mobility impaired member and, (ii) an additional one (1)
unit of the Pinecrest Improvements, and one (1) unit of the Terrace Glen Improvements must be
rehabilitated to be fully accessible to hearing and/or visually impaired persons. Non-substantial
alterations must comply with 24 C.F.R. 8.23(b). In compliance with the Accessibility
Requirements 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.
(c) 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 rehabilitate the
Development in accordance with the Accessibility Requirements. This obligation to indemnify
survives termination of this Agreement, repayment of the Combined County Loan and the
reconveyance of the Deed of Trust.
Section 3.10 Relocation.
(a) If and to the extent that acquisition and development of the Property will
result 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, (including without limitation 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; and California Government
Code Section 7260 et seq. and implementing regulations at 25 California Code of Regulations
Sections 6000 et seq.) with respect to preparation of a relocation plan, relocation planning,
advisory assistance, and payment of monetary benefits. Borrower shall be solely responsible for
payment of any relocation benefits to any displaced persons and any other obligations associated
with complying with such relocation laws.
(b) Borrower shall indemnify, defend and hold harmless, (with counsel
reasonably acceptable to the County), the County and its board members, supervisors, directors,
officers, employees, agents, successors and assigns against any claim for damages,
compensation, fines, penalties, relocation payments or other amounts and expenses (including
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reasonable attorneys' fees) arising out of the failure or alleged failure of any person or entity
(including Borrower, or the County) to satisfy relocation obligations related to the acquisition
and development of the Property. This obligation to indemnify survives termination of this
Agreement, repayment of the Combined County Loan and the reconveyance of the Deed of
Trust.
Section 3.11 Equal Opportunity.
During the rehabilitation 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 3.12 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 rehabilitation 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 rehabilitation
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 3.13 Progress Reports.
Until such time as Borrower has received a certificate of occupancy (or functional
equivalent) from Antioch for the Development, Borrower shall provide the County with
quarterly progress reports regarding the status of the rehabilitation 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 3.14 Construction Responsibilities.
(a) Borrower is responsible for the coordination and scheduling of the work to
be performed so that commencement and completion of the rehabilitation 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 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
rehabilitation of the Development.
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Section 3.15 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 Combined County 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 3.16 Inspections.
(a) 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.
(b) The County will perform inspections both during and upon completion of
construction of the Development to determine if the Development is being constructed in
accordance with the HOME Regulations, including the property standards set forth in 24 C.F.R.
92.251, and the Rehabilitation Standards. Borrower shall give the County notice when the
rehabilitation of the Development is complete. If the County determines the Development is not
being constructed in accordance with the HOME Regulations and the Rehabilitation Standards,
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 3.17 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
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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.
Section 3.18 Developer Fee.
The maximum cumulative Developer Fee that may be paid to any entity or entities
providing development services to the Development, whether paid up-front or on a deferred
basis, 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 total of Developer Fee paid, whether paid up -front
out of development sources or on a deferred basis out of Annual Operating Expenses, is not to
exceed Two Million Four Hundred Forty-Five Thousand Two Hundred Forty-Seven Dollars
($2,445,247), provided that Borrower's general partner is required to make a capital contribution
of at least Five Hundred Eleven Three Hundred Forty-Four Dollars ($511,344) to the Partnership
prior to or at Permanent Conversion. The amount of Developer Fee payable to the Developer out
of development sources shall not exceed One Million Five Hundred Thousand Dollars
($1,500,000).
Section 3.19 Partnership/Asset Fee.
During the Fifteen Year Compliance Period, the Partnership/Asset Fee is not to exceed
Thirty-Two Thousand Dollars ($32,000) 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. The Partnership/Asset Fee may accrue for a period not to exceed three (3)
fiscal years following the year during which they are earned.
Section 3.20 NEPA Mitigation Requirements.
Borrower shall comply with the NEPA mitigation requirements set forth in the attached
Exhibit C in the rehabilitation of the Improvements.
ARTICLE 4 LOAN REQUIREMENTS
Section 4.1 Match Requirement.
Borrower shall ensure that the New County Loan is matched with a minimum of Three
Hundred Twenty-Five Thousand Dollars ($325,000) 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
and replenish the Replacement Reserve Account in the amounts required in the Partnership
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Agreement and/or the documents evidencing the Permanent Loan, whichever is greater. In no
event shall the annual 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 Permanent Loan require the Operating
Reserve Account to be capitalized and replenished in an amount greater than the TCAC
requirement, Borrower shall capitalize and replenish the Operating Reserve Account as required
by the Partnership Agreement or the documents evidencing the Permanent Loan, as applicable,
for as long as the Partnership Agreement or the Permanent 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).
Section 4.3 Financial Accountings and Post-Completion Audits.
(a) No later than ninety (90) days following completion of rehabilitation 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 or prior to 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.
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Borrower shall provide any information reasonably requested by the County in
connection with the Development, including (but not limited to) any information required by
HUD in connection with Borrower's use of the Combined County 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 subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any Hazardous Materials Law including
but not limited to the provisions of California Health and Safety Code, Section 25220 et seq., or
any regulation adopted in accordance therewith.
(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 therewith
paid by Borrower.
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(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(l). 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 survives termination of this Agreement, repayment of the Combined County Loan and
the reconveyance of the 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 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 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
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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 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
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Borrower to the County as a special repayment of the Combined County 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 HOME Funds; (2) the Regulatory
Agreements; and (3) any other regulatory requirements imposed on Borrower including but not
limited to regulatory agreements associated with the Restructured Antioch Loan, and Low
Income Housing Tax Credits provided by TCAC, and rental subsidies provided to the
Development.
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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, 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 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 County-
Assisted Units in the Development to be available to and occupied by eligible households in
accordance with the Regulatory Agreements.
Section 4.13 Insurance Requirements.
(a) Borrower shall maintain the following insurance coverage throughout the
Term of the Combined County 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 (which limits may be met through
excess/umbrella coverage).
(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
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 Combined County Loan proceeds caused by dishonesty, in an amount approved by the
County, naming the County a Loss Payee, as its interests may appear, but only to the extent the
Combined County Loan includes new loan proceeds.
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(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 ten (10) days' notice prior to cancellation or material change for
non-payment of premium, and thirty (30) days' notice prior to cancellation for any other change
or cancellation in said policies; (ii) an agreement that such policies are primary and
non-contributing with any insurance that may be carried by the County; and (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.
Section 4.14 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
Partnership Agreement or any documents related to any loan that is part of the Approved
Financing in any material respect without the prior written consent of the County except for
amendments solely to effectuate Transfers permitted under Section 6.1 of the Regulatory
Agreements. 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
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.
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(e) To the extent the Partnership Agreement is inconsistent with this
Agreement with respect to the repayment of the Combined County Loan including, without
limitation, the Residual Receipts definition and the payment provisions of Section 2.10 above,
this Agreement will control. Any payments made in conflict with the Residual Receipts
definition and payment requirements of this Agreement will be considered an Event of Default.
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 Combined County 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) 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.
(d) 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.
(e) 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
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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.
(f) Compliance with Laws; Consents and Approvals. The rehabilitation 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.
(g) 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 adversely to Borrower,
materially affect Borrower's ability to repay the Combined County Loan or impair the security to
be given to the County pursuant hereto.
(h) 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 2.8(h) above, or
approved in writing by the County.
(i) 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.
(j) Sufficient Funds. Borrower holds sufficient funds and/or binding
commitments for sufficient funds to complete the acquisition of the Property and the
rehabilitation of the Development in accordance with the terms of this Agreement.
(k) 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 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.
(l) Hazardous Materials. To the best of Borrower's knowledge, except as
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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,
Tenant Selection Plan, or Social Services Plan that is approved by the County in accordance with
the Regulatory Agreements.
(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.
(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 Notes.
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(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 Notes.
(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 allowed pursuant to any Loan Document or 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 Combined County 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 other than by the County.
(k) Unauthorized Transfer. If any Transfer occurs other than as permitted
pursuant to Section 6.1 of the Regulatory Agreements.
(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 Borrower's managing general partner in accordance with
Section 6.1(f) of the Regulatory Agreements, 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 Event of Default is cured or
waived, the County is relieved of any obligation to disburse any portion of the New County
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 Notes. The County may cause all indebtedness of
Borrower to the County under this Agreement and the Notes, together with any accrued interest
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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 Combined County Loan and the
preservation, maintenance, protection, sale, or other disposition of the security given for the
Combined County 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 Combined
County 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
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
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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
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 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
October 16, 2018 BOS Minutes 800
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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. This obligation to indemnify survives termination of this Agreement, repayment
of the Combined County Loan 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 Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement, provided, however the Investor
Limited Partner is intended to be a direct beneficiary of the provisions set forth in Sections 6.5
and Section 6.1(c) and 6.1(f) of the Regulatory Agreements.
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.
(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
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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: Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
Investor Limited
Partner: RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
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
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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 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
Combined County Loan and the existence of Borrower defaults under the Loan Documents.
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
Combined County Loan.
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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]
[signatures on following page]
October 16, 2018 BOS Minutes 804
Signature page
Antioch Scattered Sites
County Loan Agreement
863\107\2382518.3
48
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: November 1, 2018
APPROVED AS TO FORM:
SHARON L. ANDERSON
County Counsel
By: ______________________
Kathleen Andrus
Deputy County Counsel
BORROWER:
ANTIOCH RECAP, L.P., a California limited
partnership
By: RCD GP III LLC, a California limited
liability company, its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation, its sole
member/manager
By:_________________________
Daniel Sawislak, Executive Director
Date: November 1, 2018
October 16, 2018 BOS Minutes 805
A-1-1
863\107\2382518.3
EXHIBIT A-1
LEGAL DESCRIPTION OF THE TERRACE GLEN PROPERTY
The land situated in the City of Antioch, of the County of Contra Costa, State of California,
described as follows:
October 16, 2018 BOS Minutes 806
A-2-1
863\107\2382518.3
EXHIBIT A-2
LEGAL DESCRIPTION OF THE PINECREST PROPERTY
The land situated in the City of Antioch, of the County of Contra Costa, State of California,
described as follows:
October 16, 2018 BOS Minutes 807
B-1
863\107\2382518.3
EXHIBIT B
APPROVED DEVELOPMENT BUDGET
October 16, 2018 BOS Minutes 808
C-1
863\107\2382518.3
EXHIBIT C
NEPA MITIGATION REQUIREMENTS
October 16, 2018 BOS Minutes 809
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND EXHIBITS ............................................................................2
Section 1.1 Definitions................................................................................................... 2
Section 1.2 Exhibits ..................................................................................................... 12
ARTICLE 2 LOAN PROVISIONS ............................................................................................12
Section 2.1 Overview of Original Development Loans. .............................................. 12
Section 2.2 Combined County Loan. ........................................................................... 13
Section 2.3 New County Loan Documents. ................................................................. 14
Section 2.4 Interest on Loans. ...................................................................................... 15
Section 2.5 Use of New County Loan.......................................................................... 15
Section 2.6 Security. .................................................................................................... 15
Section 2.7 Subordination. ........................................................................................... 15
Section 2.8 Conditions Precedent to Disbursement of New County
Loan for Construction. .............................................................................. 17
Section 2.9 Conditions Precedent to Disbursement of Retention. ............................... 19
Section 2.10 Repayment Schedule................................................................................. 20
Section 2.11 Reports and Accounting of Residual Receipts.......................................... 21
Section 2.12 Non-Recourse............................................................................................ 22
ARTICLE 3 REHABILITATION OF THE DEVELOPMENT.................................................23
Section 3.1 Permits and Approvals. ............................................................................. 23
Section 3.2 Bid Package............................................................................................... 23
Section 3.3 Construction Contract. .............................................................................. 23
Section 3.4 Construction Bonds................................................................................... 24
Section 3.5 Commencement of Construction. ............................................................. 24
Section 3.6 Completion of Construction...................................................................... 24
Section 3.7 Changes; Construction Pursuant to Plans and Laws. ................................ 24
Section 3.8 Prevailing Wages. ..................................................................................... 25
Section 3.9 Accessibility.............................................................................................. 27
Section 3.10 Relocation. ................................................................................................ 27
Section 3.11 Equal Opportunity..................................................................................... 28
Section 3.12 Minority and Women-Owned Contractors. .............................................. 28
Section 3.13 Progress Reports. ...................................................................................... 28
Section 3.14 Construction Responsibilities. .................................................................. 28
Section 3.15 Mechanics Liens, Stop Notices, and Notices of Completion.................... 29
Section 3.16 Inspections. ............................................................................................... 29
Section 3.17 Approved Development Budget; Revisions to Budget. ............................ 29
Section 3.18 Developer Fee. .......................................................................................... 30
Section 3.19 Partnership/Asset Fee................................................................................ 30
Section 3.20 NEPA Mitigation Requirements. .............................................................. 30
ARTICLE 4 LOAN REQUIREMENTS.....................................................................................30
Section 4.1 Match Requirement................................................................................... 30
Section 4.2 Reserve Accounts...................................................................................... 30
Section 4.3 Financial Accountings and Post-Completion Audits. ............................... 31
Section 4.4 Approval of Annual Operating Budget. .................................................... 31
October 16, 2018 BOS Minutes 810
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Section 4.5 Information................................................................................................ 31
Section 4.6 County Audits. .......................................................................................... 32
Section 4.7 Hazardous Materials. ................................................................................ 32
Section 4.8 Maintenance; Damage and Destruction. ................................................... 34
Section 4.9 Fees and Taxes. ......................................................................................... 35
Section 4.10 Notice of Litigation. .................................................................................. 35
Section 4.11 Operation of Development as Affordable Housing. ................................. 35
Section 4.12 Nondiscrimination..................................................................................... 36
Section 4.13 Insurance Requirements. ........................................................................... 36
Section 4.14 Covenants Regarding Approved Financing and Partnership
Agreement. ................................................................................................ 37
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER .......................38
Section 5.1 Representations and Warranties................................................................ 38
ARTICLE 6 DEFAULT AND REMEDIES...............................................................................40
Section 6.1 Events of Default. ..................................................................................... 40
Section 6.2 Remedies. .................................................................................................. 41
Section 6.3 Right of Contest. ....................................................................................... 42
Section 6.4 Remedies Cumulative. .............................................................................. 42
Section 6.5 Notice and Cure Rights of Limited Partner. ............................................. 42
ARTICLE 7 GENERAL PROVISIONS ....................................................................................43
Section 7.1 Relationship of Parties. ............................................................................. 43
Section 7.2 No Claims. ................................................................................................ 43
Section 7.3 Amendments. ............................................................................................ 43
Section 7.4 Indemnification. ........................................................................................ 43
Section 7.5 Non-Liability of County Officials, Employees and Agents...................... 44
Section 7.6 Third Party Beneficiaries. ......................................................................... 44
Section 7.7 Discretion Retained By County. ............................................................... 44
Section 7.8 Conflict of Interest. ................................................................................... 44
Section 7.9 Notices, Demands and Communications. ................................................. 45
Section 7.10 Applicable Law. ........................................................................................ 45
Section 7.11 Parties Bound. ........................................................................................... 45
Section 7.12 Attorneys' Fees. ......................................................................................... 45
Section 7.13 Severability. .............................................................................................. 46
Section 7.14 Force Majeure. .......................................................................................... 46
Section 7.15 County Approval....................................................................................... 46
Section 7.16 Waivers. .................................................................................................... 46
Section 7.17 Title of Parts and Sections. ....................................................................... 46
Section 7.18 Entire Understanding of the Parties. ......................................................... 46
Section 7.19 Multiple Originals; Counterpart................................................................ 47
EXHIBIT A-1: Legal Description of the Terrace Glen Property
October 16, 2018 BOS Minutes 811
TABLE OF CONTENTS
(continued)
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863\107\2382518.3
EXHIBIT A-2: Legal Description of the Pinecrest Property
EXHIBIT B Approved Development Budget
EXHIBIT C NEPA Mitigation Requirements
October 16, 2018 BOS Minutes 812
863\107\2382518.3
DEVELOPMENT LOAN AGREEMENT
Between
COUNTY OF CONTRA COSTA
And
ANTIOCH RECAP, L.P.
ANTIOCH SCATTERED SITE RENOVATION
dated November 1, 2018
October 16, 2018 BOS Minutes 813
863\107\2382960.2 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 and 27388.1
__________________________________________________________________________
INTERCREDITOR AGREEMENT
(Antioch Scattered Site Renovation)
This Intercreditor Agreement (the "Agreement") is dated November 1, 2018, and is
among the City of Antioch, a municipal corporation (the "City"), the County of Contra Costa, a
political subdivision of the State of California (the "County"), and Antioch Recap, 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. Borrower is acquiring from Resources for Community Development, a California
nonprofit public benefit corporation (the "Terrace Glen Seller" or "RCD") that certain real
property located at 35, 45, 101, 103, 105 and 107 W. 20th Street, and 104 and 106 W. 20th
Street, in the City of Antioch, County of Contra Costa, State of California, as more particularly
described in Exhibit A (the "Terrace Glen Property"). The Terrace Glen Property is improved
with thirty-two (32) of affordable housing and attendant site improvements (the "Terrace Glen
Improvements").
C. Borrower is acquiring from Pinecrest Housing Associates L.P., a California
limited partnership (the "Pinecrest Seller") that certain real property located at 1945 and 1949
Cavallo Road in the City of Antioch, County of Contra Costa, State of California, as more
particularly described in Exhibit A (the "Pinecrest Property"). The Pinecrest Property is
improved with twenty-four (24) units of affordable housing and attendant site improvements (the
"Pinecrest Improvements").
D. The Terrace Glen Improvements and the Pinecrest Improvements, are collectively
referred to as the "Improvements." The Terrace Glen Property and the Pinecrest Property, are
collectively referred to as the "Property." The Improvements and the Property are collectively
referred to as the "Development."
October 16, 2018 BOS Minutes 814
863\107\2382960.2 2
E. The County previously made a loan of Six Hundred Fifteen Thousand Dollars
($615,000) in HOME Funds to Terrace Glen Partners, L.P., a California limited partnership, on
November 4, 1996, which loan was increased to Eight Hundred Fifty-Six Thousand Dollars
($856,000) on August 5, 1998 as assigned to the Terrace Glen Seller (the "Original County
Terrace Glen Loan").
F. The County previously made a loan of Six Hundred Twenty-Five Thousand
Dollars ($625,000) in HOME Funds to the Pinecrest Seller on September 18, 2000 (the "Original
County Pinecrest Loan"). The Original County Terrace Glen Loan and the Original County
Pinecrest Loan are collectively referred to as the "Original County Loans."
G. In support of the rehabilitation of the Improvements and a common scheme of
financing, the County has agreed to restructure the Original County Loans and consent to their
assignment to Borrower, and provide additional loan funds to Borrower in the amount of One
Million Three Hundred Thousand Dollars ($1,300,000) (the "New County Loan").
H. The sum of the combined Restructured County Loans and New County Loan is
Three Million Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962)
(the "Combined County Loan").
I. The Combined County Loan is evidenced by a Development Loan Agreement
between the County and Borrower of even date herewith (the "County Loan Agreement").
Pursuant to the County Loan Agreement the Original County Loans are restructured to: (i)
extend their term, (ii) change the interest rate, and (iii) include accrued interest in the outstanding
principal amount. The Combined County Loan is evidenced by following promissory notes
executed Borrower for the benefit of the County (collectively, the "County Notes"): (i) a
promissory note in the amount of the Original County Terrace Glen Loan, as restructured (the "
Restructured Terrace Glen Loan"); (ii) a promissory note in the amount of the Original County
Pinecrest Loan, as restructured (the "Restructured Pinecrest Loan"); and (iii) a promissory note
in the amount of the New County Loan. The Combined County Loan is also evidenced by a
Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing of even date
herewith among Borrower, as trustor, North American Title Company, as trustee, and the
County, as beneficiary, recorded against the Property concurrently herewith (the "County Deed
of Trust").
J. The City previously made a loan to Terrace Glen Partners, L.P., a California
limited partnership in the amount of One Million Three Hundred Ninety-Seven Thousand Six
Hundred Twenty-Five Dollars ($1,397,625) (the "Original City Terrace Glen Loan"). The City
also made a loan to the Pinecrest Seller in the amount of Eight Hundred Seventy Thousand
Dollars ($870,000) (the "Original City Pinecrest Loan"). The Original City Terrace Glen Loan
and the Original City Pinecrest Loan are collectively referred to as the "Original City Loans."
K. In support of the rehabilitation of the Improvements and a common scheme of
financing, the City has agreed to restructure the Original City Loans and consent to their
assignment to Borrower. The principal amount of the restructured Original City Loans is Three
Million Five Hundred Twenty-Nine Thousand Six Hundred Thirty-Eight Dollars ($3,529,638)
(the "Restructured City Loan").
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863\107\2382960.2 3
L. The Restructured City Loan is evidenced by the following documents (among
others): (i) a Restructured Loan Agreement by and between the City and Borrower of even date
herewith (the "City Loan Agreement "); (ii) a Deed of Trust with Assignment of Rents, Security
Agreement, and Fixture Filing executed by Borrower for the benefit of the City to be recorded
against the Property (the "City Deed of Trust"); and (iii) a Promissory Note executed by
Borrower for the benefit of the City in the amount of the Restructured City Loan (the "City
Note").
M. 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, and (ii) the Lenders' Share of Residual Receipts, as described herein.
NOW, THEREFORE, the Parties agree as follows:
AGREEMENT
1. Definitions. The following terms have the following meanings:
(a) "Annual County Loan Payment" has the meaning in Section 2(a).
(b) "Annual City Loan Payment" has the meaning in Section 2(b).
(c) "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 Permanent 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. 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;
vi. the Partnership/Asset Fee;
vii. 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;
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863\107\2382960.2 4
viii. premiums for insurance required for the Improvements to satisfy
the requirements of any lender of Approved Financing;
ix. utility services not paid for directly by tenants, including water,
sewer, and trash collection;
x. maintenance and repair expenses and services;
xi. any annual license or certificate of occupancy fees required for
operation of the Development;
xii. security services;
xiii. advertising and marketing;
xiv. cash deposited into the Replacement Reserve Account in the
amount set forth in Section 4.2(a) of the County Loan Agreement;
xv. 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);
xvi. payment of any previously unpaid portion of Developer Fee
(without interest), not to exceed the amount set forth in Section 3.18 of the County Loan
Agreement;
xvii. extraordinary operating costs specifically approved in writing by
the County and the City;
xviii. 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.
(d) "Approved Financing" me ans 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 Combined
County Loan and the Restructured City Loan:
i. County of Contra Costa Multifamily Housing Revenue Bonds
(Antioch Scattered Site Renovation) Series 2018A issued by the County of Contra Costa (the
"Issuer") in the approximate amount of Ten Million Four Hundred Seventy-Five Thousand Four
Hundred Forty-One Dollars ($10,475,441) (the "Bonds"), that are purchased by the Bank and the
sale proceeds of which are loaned to Borrower (the "Bank Loan") which will convert to a
October 16, 2018 BOS Minutes 817
863\107\2382960.2 5
permanent loan in the approximate amount of Four Million Six Hundred Eighty Thousand
Dollars ($4,680,000) (the "Permanent Loan");
ii. the Low Income Housing Tax Credit investor equity funds in the
approximate amount of Six Million Eight Hundred Sixty-Six Thousand Eight Hundred Seventy-
Six Dollars ($6,866,876) (the "Tax Credit Investor Equity") provided by the Investor Limited
Partner;
iii. the loan from RCD of Development reserves in the approximate
amount of Two Hundred Five Thousand Nine Hundred Dollars ($205,900) (the "Reserve Loan");
and
iv. the capital contribution from Borrower's general partner in the
approximate amount of Five Hundred Forty Thousand Three Hundred Forty-Four Dollars
($540,344,) (the "GP Capital Contribution").
(e) "Available Net Proceeds" means the result obtained by multiplying the
Net Proceeds of Permanent Financing by 0.75.
(f) "Bank" means Wells Fargo Bank, N.A. a national banking association.
(g) "Bank Loan" has the meaning set forth in Section 1(d)(i).
(h) "Bonds" has the meaning set forth in Section 1(d)(i).
(i) "City" has the meaning set forth in the first paragraph of this Agreement.
(j) "City Deed of Trust" has the meaning set forth in Paragraph L of the
Recitals.
(k) "City Loan Agreement" has the meaning set forth in Paragraph L of the
Recitals.
(l) "City Loan Prorata Percentage" means the result, expressed as a
percentage, obtained by dividing the Restructured City Loan minus any Special City Loan
Payment by the sum of (1) the Combined County Loan minus any Special County Loan
Payment, and (2) the Restructured City Loan minus any Special City Loan Payment.
(m) "City Note" has the meaning set forth in Paragraph L of the Recitals.
(n) "City Special Repayment Prorata Percentage" means the result, expressed
as a percentage, obtained by dividing the Restructured City Loan by the sum of (1) the
Combined County Loan and (2) the Restructured City Loan.
(o) "Combined County Loan" has the meaning set forth in Paragraph H of the
Recitals.
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(p) "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.
(q) "County" has the meaning set forth in the first paragraph of this
Agreement.
(r) "County Deed of Trust" has the meaning set forth in Paragraph I of the
Recitals.
(s) "County Loan Agreement" has the meaning set forth in Paragraph I of the
Recitals.
(t) "County Loan Prorata Percentage" means the result, expressed as a
percentage, obtained by dividing the Combined County Loan minus any Special County Loan
Payment by the sum of (1) the Combined County Loan minus any Special County Loan
Payment, and (2) the Restructured City Loan minus any Special City Loan Payment.
(u) "County Notes" has the meaning set forth in Paragraph I of the Recitals.
(v) "County Special Repayment Prorata Percentage" means the result,
expressed as a percentage, obtained by dividing the Combined County Loan by the sum of (1)
the Combined County Loan and (2) the Restructured City Loan.
(w) "Deeds of Trust" has the meaning set forth in Paragraph M of the Recitals.
(x) "Default Rate" means a rate of interest equal to the lesser of the maximum
rate permitted by law and ten percent (10%) per annum.
(y) "Developer Fee" has the meaning set forth in Section 3.18 of the County
Loan Agreement.
(z) "Development" has the meaning set forth in Paragraph D of the Recitals.
(aa) "Enforcing Party" has the meaning set forth in Section 6(b).
(bb) "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.
(cc) "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.
(dd) "Final Development Cost" means the total of the cost of acquisition and
construction of the Development as shown on the Final Cost Certification.
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863\107\2382960.2 7
(ee) "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.
(ff) "GP Capital Contribution" has the meaning set forth in Section 1(d)(v).
(gg) "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 or other rental 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, capital
contributions or similar advances.
(hh) "HOME Funds" means Home Investment Partnerships Act funds provided
from HUD to the County pursuant to the Cranston-Gonzales National Housing Act of 1990,
which must be used in accordance with 24 C.F.R. Part 92.
(ii) "HUD" means the United States Department of Housing and Urban
Development.
(jj) "Improvements" has the meaning set forth in Paragraph D of the Recitals.
(kk) "Investor Limited Partner" means, RSEP Holding, LLC, a Delaware
limited liability company.
(ll) "Issuer" has the meaning set forth in Section 1.1(d)(i).
October 16, 2018 BOS Minutes 820
863\107\2382960.2 8
(mm) "Lenders' Share of Residual Receipts" means seventy-five percent (75%)
of Residual Receipts.
(nn) "Net Proceeds of Permanent Financing" means the amount by which
Permanent Financing exceeds the Final Development Costs.
(oo) "New County Loan" has the meaning set forth in Paragraph G of the
Recitals.
(pp) "Original City Loans" has the meaning set forth in Paragraph J of the
Recitals.
(qq) "Original City Pinecrest Loan" has the meaning set forth in Paragraph J of
the Recitals.
(rr) "Original City Terrace Glen Loan" has the meaning set forth in Paragraph
J of the Recitals.
(ss) "Original County Loans" has the meaning set forth in Paragraph F of the
Recitals.
(tt) "Original County Pinecrest Loan" has the meaning set forth in Paragraph
F of the Recitals.
(uu) "Original County Terrace Glen Loan" has the meaning set forth in
Paragraph E of the Recitals.
(vv) "Parties" means the City, the County, and Borrower.
(ww) "Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated on or about the date of recordation of the Deeds of Trust, as may be
amended from time to time, that governs the operation and organization of Borrower as a
California limited partnership.
(xx) "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 the 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 3.19 of the County Loan Agreement.
(yy) "Permanent Financing" means the sum of the following amounts: (i) the
Permanent Loan; (ii) the Combined County Loan; (iii) the Restructured City Loan; (iv) the
Reserve Loan; (v) the Tax Credit Investor Equity ; and (vi) the GP Capital Contribution.
(zz) "Pinecrest Improvements" has the meaning set forth in Paragraph C of the
Recitals.
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(aaa) "Pinecrest Property" has the meaning set forth in Paragraph C of the
Recitals.
(bbb) "Pinecrest Seller" has the meaning set forth in Paragraph C of the Recitals.
(ccc) "Permanent Loan" has the meaning set forth in Section 1.1(d)(i).
(ddd) "Property" has the meaning set forth in Paragraph D of the Recitals.
(eee) "RCD" has the meaning set forth in Paragraph B of the Recitals.
(fff) "Reserve Loan" has the meaning set forth in Section 1.1(d)(iii)
(ggg) "Residual Receipts" means for each calendar year, the amount by which
Gross Revenue exceeds Annual Operating Expenses.
(hhh) "Restructured City Loan" has the meaning set forth in Paragraph K of the
Recitals.
(iii) "Restructured County Loans" means the Restructured Terrace Glen Loan,
and the Restructured Pinecrest Loan, with a combined principal balance of Two Million Three
Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($2,370,962).
(jjj) "Restructured Pinecrest Loan" has the meaning set forth in Paragraph I of
the Recitals.
(kkk) "Restructured Terrace Glen Loan" has the meaning set forth in Paragraph I
of the Recitals.
(lll) "Special City Loan Payment" has the meaning set forth in Section 3(b).
(mmm)"Special County Loan Payment" has the meaning in Section 3(a).
(nnn) "Statement of Residual Receipts" means an itemized statement of Residual
Receipts.
(ooo) "Tax Credit Investor Equity" has the meaning set forth in Section 1(d)(ii).
(ppp) "Terrace Glen Improvements" has the meaning set forth in Paragraph B of
the Recitals.
(qqq) "Terrace Glen Property" has the meaning set forth in Paragraph B of the
Recitals.
(rrr) "Terrace Glen Seller" has the meaning set forth in Paragraph B of the
Recitals.
(sss) "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
October 16, 2018 BOS Minutes 822
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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) Combined County Loan.
i. Commencing on June 1, 2020, and on June 1 of each year
thereafter during the Term, Borrower shall make a loan payment to the County in an amount
equal to the County Loan Prorata Percentage of the Lenders' Share of Residual Receipts (each
such payment, an "Annual County Loan Payment"). 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
Combined County Loan as follows: (1) first, to accrued interest, and (2) second, to principal.
ii. Borrower shall repay the Combined County Loan pursuant to the
terms of the County Loan Agreement and the County Notes. 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 Notes 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, 2020, and on June 1 of each year
thereafter during the Term, Borrower shall make a loan payment to the City in an amount equal
to the City Loan Prorata Percentage of the Lenders' Share of Residual Receipts (each such
payment, an "Annual City Loan Payment"). 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 to the Restructured City Loan 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
City Loan Agreement and the City Note. In the event of any conflict between the repayment
terms of the City Loan Agreement and this Agreement, the provisions of this Agreement apply.
The City may not consent to any amendment or waiver of the terms of the City Loan Agreement
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 Repayment from Net Proceeds of Permanent Financing.
(a) 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 Combined County Loan, an amount equal to the result obtained by multiplying
October 16, 2018 BOS Minutes 823
863\107\2382960.2 11
the County Special Repayment Prorata Percentage by the Available Net Proceeds (the "Special
County Loan Payment ").
(b) 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
Special Repayment Prorata Percentage 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, 2019, and
ends on December 31 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
Borrower's financial records for the relevant period, which statement must confirm that
Borrower's calculation of the Lender's Share 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.
(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 it s 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.
October 16, 2018 BOS Minutes 824
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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,
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 Restructured City Loan and the Combined 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 Notes, 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.
October 16, 2018 BOS Minutes 825
863\107\2382960.2 13
(a) If there is a default under the Restructured City Loan and/or Combined
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 Loan Prorata Percentage by the
Foreclosure Net Proceeds, and (ii) the County is entitled to the result obtained by multiplying the
County Loan Prorata Percentage by the Foreclosure Net Proceeds.
9. Insurance and Condemnation Proceeds. If, as a result of having made the
Restructured City Loan and the Combined 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 to the result obtained by multiplying the City Loan Prorata Percentage by the available
proceeds, and (ii) the County is entitled to the result obtained by multiplying the County Loan
Prorata Percentage by the available proceeds.
10. Title to Property. If, as a result of having made the Restructured City Loan and
the Combined 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 in accordance with their respective prorata share of the Foreclosure Net Proceeds.
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 Antioch
Community Development Department
P.O. Box 5007
200 H Street
Antioch, CA 94531
Attn: City Manager
County: County of Contra Costa
Department of Conservation and Development
October 16, 2018 BOS Minutes 826
863\107\2382960.2 14
30 Muir Road
Martinez, California 94553
Attention: Assistant Deputy Director
Borrower: Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
Investor Limited
Partner: RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
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.
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, and the entire understanding and agreement of the Parties
with respect to the equal lien priority of the City Deed of Trust and County Deed 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.
October 16, 2018 BOS Minutes 827
863\107\2382960.2 15
19. Subordination. This Agreement is in all respects subordinate to that certain
Rental Assistance Demonstration (RAD) Use Agreement (the "RAD Use Agreement") to be
entered into between the U.S. Department of Housing and Urban Development and Borrower
recorded contemporaneously herewith in the Official Records of Contra Costa County. This
subordination continues in effect with respect to any future amendment, extension, renewal, or
any other modification of the RAD Use Agreement or this Agreement. If any of the provisions of
this Agreement conflict with the terms of the RAD Use Agreement, the provisions of the RAD
Use Agreement control.
[Remainder of Page Left Intentionally Blank]
October 16, 2018 BOS Minutes 828
Signature Page
Antioch Scattered Site Intercreditor Agreement
863\107\2382960.2
16
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
BORROWER:
ANTIOCH RECAP, L.P., a California limited
partnership
By: RCD GP III, LLC, a California limited
liability company, its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation, its sole
member/manager
By:_________________________
Daniel Sawislak, Executive Director
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
APPROVED AS TO FORM :
GOLDFARB & LIPMAN LLP
City Special Counsel
By: __________________________
CITY:
CITY OF ANTIOCH
By: __________________
Steven Duran, City Manager
October 16, 2018 BOS Minutes 829
863\107\2382960.2 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: ______________________________
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.
October 16, 2018 BOS Minutes 830
863\107\2382960.2 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: ______________________________
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.
October 16, 2018 BOS Minutes 831
863\107\2382960.2 19
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: ______________________________
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 certificat e is
attached, and not the truthfulness, accuracy, or validity of that document.
October 16, 2018 BOS Minutes 832
A-1
863\107\2382960.2
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
(both properties)
The land is situated in the State of California, County of Contra Costa, and is described as
follows:
October 16, 2018 BOS Minutes 833
B-1
863\107\2382960.2
EXHIBIT B
COUNTY/CITY
RESIDUAL RECEIPTS NUMERICAL EXPLANATION
[To be Attached]
October 16, 2018 BOS Minutes 834
863\107\2382782.2 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 and 27388.1
DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
(Antioch Scatted Site Renovation)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT, AND FIXTURE FILING ("Deed of Trust") is made as of November 1, 2018, by
and among Antioch Recap, L.P., a California limited partnership ("Trustor"), North American
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,
October 16, 2018 BOS Minutes 835
863\107\2382782.2 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.
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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 Antioch recorded
concurrently herewith.
Section 1.3 The term "Loan" means the loan made by Beneficiary to Trustor in the
amount of Three Million Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars
($3,670,962).
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 Three Million Six Hundred
Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962).
Section 1.5 The term "Loan Documents" means this Deed of Trust, the Note, the Loan
Agreement, the Intercreditor Agreement, the Regulatory Agreement, and any other agreements,
debt, loan or security instruments between Trustor and Beneficiary relating to the Loan.
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Section 1.6 The term "Note" means collectively, the promissory notes of even date
herewith, executed by Trustor in favor of Beneficiary, as they may be amended or restated, in the
following principal amounts: (i) Nine Hundred Fifty-Eight Thousand One Hundred Thirty-Five
Dollars ($958,135) for the Restructured Pinecrest Loan; (ii) One Million Four Hundred Twelve
Thousand Eight Hundred Twenty-Seven Dollars ($1,412,827) for the Restructured Terrace Glen
Loan, and (iii) One Million Three Hundred Thousand Dollars ($1,300,000)for the New County
Loan, the payment of which is secured by this Deed of Trust. The terms and provisions of the
Note are incorporated herein by reference. All capitalized terms used but not defined in this
Section 1.6 have the meanings set forth in the Loan Agreement.
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 following of
even date herewith by and between Beneficiary and Trustor and recorded concurrently herewith:
(i) the Pinecrest County Regulatory Agreement; (ii) the Pinecrest HOME Regulatory Agreement;
(iii) the Terrace Glen County Regulatory Agreement, and (iv) the Terrace Glen HOME
Regulatory Agreement. All capitalized terms used but not defined in this Section 1.8 have the
meanings set forth in the Loan Agreement.
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
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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
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.
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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
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
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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.
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)
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make any repairs or replacements that are necessary and provide for payment thereof. All
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 any 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.
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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 copy 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.
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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 subject to any restrictions on the ownership, occupancy, transferability or use of the
Property under any Hazardous Materials Law including but not limited to the provisions of
California Health and Safety Code, Section 25220 et seq., or any regulation adopted in
accordance therewith.
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,
generation, manufacture, storage, release, threatened release, discharge, disposal, transportation,
or presence of Hazardous Materials on, under, or about the Property; (iv) any investigation,
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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
Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code
of Civil Procedure Section 736.
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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.
The notice and cure rights of Trustor's limited partner are set forth in Section 6.5 of the
Loan Agreement.
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
October 16, 2018 BOS Minutes 846
863\107\2382782.2 13
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 necessar y
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.
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 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
October 16, 2018 BOS Minutes 847
863\107\2382782.2 14
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.
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.
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.
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. 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
October 16, 2018 BOS Minutes 848
863\107\2382782.2 15
hereunder or impair any rights, power or remedies consequent on any Event of Default by the
Trustor.
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
connection with the delivery, acceptance, performance, default, endorsement or guaranty of this
Deed of Trust.
October 16, 2018 BOS Minutes 849
863\107\2382782.2 16
ARTICLE 8
MISCELLANEOUS
Section 8.1 Amendments.
This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only
by an instrument in writing signed by Beneficiary and Trustor.
Section 8.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all Secured Obligations have been paid
or forgiven, and all obligations under the Loan Documents have been performed in full, and
upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment
by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the
person or persons legally entitled thereto.
Section 8.3 Notices.
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:
Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
With a copy to:
RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
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
October 16, 2018 BOS Minutes 850
863\107\2382782.2 17
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.
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.
October 16, 2018 BOS Minutes 851
863\107\2382782.2 18
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
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 between
the U.S. Department of Housing and Urban Development and the Trustor recorded
contemporaneously herewith in the Official Records of Contra Costa County.
October 16, 2018 BOS Minutes 852
Signature page
County Deed of Trust
863\107\2382782.2
19
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first
above written.
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its general partner
By: Resources for Community Development,
a California nonprofit public benefit corporation
its sole member/manager
By:__________________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 853
863\107\2382782.2
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: ______________________________
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.
October 16, 2018 BOS Minutes 854
A-1
863\107\2382782.2
EXHIBIT A
LEGAL DESCRIPTION
(both properties)
The land is situated in the State of California, County of Contra Costa, and is described as
follows:
October 16, 2018 BOS Minutes 855
863\107\2382777.2 1
PROMISSORY NOTE
(New County Loan)
$1,300,000 Martinez, California
November 1, 2018
FOR VALUE RECEIVED, the undersigned Antioch Recap, 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 One Million
Three Hundred Thousand Dollars ($1,300,000) 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
Development Loan Agreement between Borrower and Holder of even date herewith (the "Loan
Agreement ").
1. Borrower's Obligation. This promissory note (the "Note") evidences Borrower's
obligation to repay Holder the principal amount of One Million Three Hundred Thousand
Dollars ($1,300,000) with interest for the funds loaned to Borrower by Holder to finance the
rehabilitation of the Development pursuant to the Development Loan Agreement.
2. Interest.
(a) Subject to the provisions of Subsection (b) below, the New County Loan
will not bear interest.
(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 2.10 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
Borrower, pursuant to and except as provided in Section 2.12 of the Loan Agreement which
Section 2.12 is hereby incorporated into this Note. The terms of the Deed of Trust are hereby
incorporated into this Note and made a part hereof.
October 16, 2018 BOS Minutes 856
863\107\2382777.2 2
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: Assistant Deputy Director, 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.
(c) The notice and cure rights of Borrower's limited partner are set forth in
Section 6.5 of the Loan Agreement.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and
notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time
October 16, 2018 BOS Minutes 857
863\107\2382777.2 3
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]
October 16, 2018 BOS Minutes 858
Signature page
New County Loan Note
863\107\2382777.2
4
IN WITNESS WHEREOF, Borrower is executing this Promissory Note as of the day and
year first above written.
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its general partner
By: Resources for Community Development,
a California nonprofit public benefit corporation
its sole member/manager
By:__________________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 859
863\107\2382770.3 1
PROMISSORY NOTE
(Restructured Pinecrest Loan)
$958,135 Martinez, California
November 1, 2018
FOR VALUE RECEIVED, the undersigned Antioch Recap, 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 Nine Hundred
Fifty-Eight Thousand One Hundred Thirty-Five Dollars ($958,135) plus interest thereon
pursuant to Section 2 below.
This Promissory Note (the "Note") replaces in its entirety the promissory note dated
September 18, 2000, and executed by Pinecrest Affordable Housing L.P., a California limited
partnership for the benefit of Holder, evidencing the obligation to pay the amount of Six
Hundred Twenty-Five Thousand Dollars ($625,000) of HOME Funds (the "Original Note"). All
disbursements under the Original Note will be deemed to be disbursed under this Note. Upon
execution of this Note by Borrower, the Original Note will automatically terminate and will be
returned to Borrower by the Holder.
All capitalized terms used but not defined in this Note have the meanings set forth in the
Development Loan Agreement between Borrower and Holder of even date herewith (the "Loan
Agreement ").
1. Borrower's Obligation. This Note evidences Borrower's obligation to repay
Holder the principal amount of Nine Hundred Fifty-Eight Thousand One Hundred Thirty-Five
Dollars ($958,135) with interest for the funds loaned to Borrower by Holder pursuant to the Loan
Agreement.
2. Interest.
(a) Subject to the provisions of Subsection (b) below, the Restructured
Pinecrest Loan bears interest from the date of this Note at _______________%, compounding
annually, until full repayment of the outstanding balance of the Restructured Pinecrest Loan. It
is the intent that the interest rate stated in this Section 2(a) is the Applicable Federal Rate
applicable to long-term loans with annual compounding, as calculated in accordance with
Internal Revenue Code Section 1274(d) as of the date of this Note.
(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 2.10 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
October 16, 2018 BOS Minutes 860
863\107\2382770.3 2
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
Borrower, pursuant to and except as provided in Section 2.12 of the Loan Agreement which
Section 2.12 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: Assistant Deputy Director, 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
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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.
(c) The notice and cure rights of Borrower's limited partner are set forth in
Section 6.5 of the Loan Agreement.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and
notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time
to time, and that Holder may accept further security or release any security for this Note, all
without in any way affecting the liability of Borrowe r.
(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]
October 16, 2018 BOS Minutes 862
Signature page
Restructured Pinecrest Loan Note
863\107\2382770.3
4
IN WITNESS WHEREOF, Borrower is executing this Promissory Note as of the day and
year first above written.
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its general partner
By: Resources for Community Development,
a California nonprofit public benefit corporation
its sole member/manager
By:__________________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 863
863\107\2382774.2 1
PROMISSORY NOTE
(Restructured Terrace Glen Loan)
$1,412,827 Martinez, California
November 1, 2018
FOR VALUE RECEIVED, the undersigned Antioch Recap, 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 One Million
Four Hundred Twelve Thousand Eight Hundred Twenty-Seven Dollars ($1,412,827) plus
interest thereon pursuant to Section 2 below.
This Promissory Note (the "Note") replaces in its entirety the promissory note executed
by Terrace Glen Partners, L.P., a California limited partnership for the benefit of Holder dated
November 4, 1996, as superseded by that certain promissory note dated August 5, 1998,
evidencing the obligation to pay the amount of Eight Hundred Fifty-Six Thousand Dollars
($856,000) of HOME Funds (the "Original Note"). All disbursements under the Original Note
will be deemed to be disbursed under this Note. Upon execution of this Note by Borrower, the
Original Note will automatically terminate and will be returned to Borrower by the Holder.
All capitalized terms used but not defined in this Note have the meanings set forth in the
Development Loan Agreement between Borrower and Holder of even date herewith (the "Loan
Agreement ").
1. Borrower's Obligation. This Note evidences Borrower's obligation to repay
Holder the principal amount of One Million Four Hundred Twelve Thousand Eight Hundred
Twenty-Seven Dollars ($1,412,827) with interest for the funds loaned to Borrower by Holder
pursuant to the Loan Agreement.
2. Interest.
(a) Subject to the provisions of Subsection (b) below, the Restructured
Terrace Glen Loan bears interest from the date of this Note at _______________%,
compounding annually, until full repayment of the outstanding balance of the Restructured
Terrace Glen Loan. It is the intent that the interest rate stated in this Section 2(a) is the
Applicable Federal Rate applicable to long-term loans with annual compounding, as calculated
in accordance with Internal Revenue Code Section 1274(d) as of the date of this Note.
(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 2.10 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
October 16, 2018 BOS Minutes 864
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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
Borrower, pursuant to and except as provided in Section 2.12 of the Loan Agreement which
Section 2.12 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: Assistant Deputy Director, 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
October 16, 2018 BOS Minutes 865
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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.
(c) The notice and cure rights of Borrower's limited partner are set forth in
Section 6.5 of the Loan Agreement.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and
notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time
to time, and that Holder may accept further security or release any security for this Note, all
without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment hereof
made by agreement of Holder with any person now or hereafter liable for payment of this Note
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]
October 16, 2018 BOS Minutes 866
Signature page
Restructured Terrace Glen Note
863\107\2382774.2
4
IN WITNESS WHEREOF, Borrower is executing this Promissory Note as of the day and
year first above written.
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III LLC,
a California limited liability company,
its general partner
By: Resources for Community Development,
a California nonprofit public benefit corporation
its sole member/manager
By:__________________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 867
1
863\107\2383450.2
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 and 27388.1
__________________________________________________________________________
HOME REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Antioch Scattered Site Renovation
(Pinecrest New HOME Units)
This HOME Regulatory Agreement and Declaration of Restrictive Covenants (the
"HOME Regulatory Agreement") is dated November 1, 2018 and is between the County of
Contra Costa, a political subdivision of the State of California (the "County"), and Antioch
Recap, 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 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. Borrower intends to purchase that certain real property located at 1945 and 1949
Cavallo Road in the City of Antioch, County of Contra Costa, State of California, as more
particularly described in Exhibit A (the "Property") from Pinecrest Affordable Housing, L.P., a
California limited partnership (the "Seller"). Borrower intends to rehabilitate the existing
twenty-four (24) housing units located on the Property for rental to extremely low, very low and
low income households, along with one (1) manager's unit. Together the Property and its
improvements are the "Development".
D. Pursuant to a Development Loan Agreement of even date herewith between the
County and Borrower (the "Loan Agreement"), the County is lending Borrower Three Million
Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962) (the "Combined
County Loan") to assist in the rehabilitation of the Development, and the concurrent
rehabilitation of thirty-two (32) units of affordable housing located at 35, 45, 101, 103, 105 and
October 16, 2018 BOS Minutes 868
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107 W. 20th Street, and 104 and 106 W. 20th Street in the City of Antioch (the "Terrace Glen
Property"). The Development and the Terrace Glen Property are collectively referred to as the
"Antioch Scattered Site Development." The Combined County Loan includes restructured
existing financing associated with the Antioch Scattered Site Development, as well as new
financing, to assist in the rehabilitation of the Antioch Scattered Site Development.
E. The Combined County Loan includes: (i) Six Hundred Twenty-Five Thousand
Dollars ($625,000) of HOME Funds previously loaned to the Seller and restructured pursuant to
the Loan Agreement; (ii) Eight Hundred Fifty-Six Thousand Dollars ($856,000) of HOME
Funds previously loaned to the owner of the Terrace Glen Property and restructured pursuant to
the Loan Agreement; and (iii) One Million Three Hundred Thousand Dollars ($1,300,000) in
HOME Funds to be loaned to Borrower by the County, concurrent with the execution of this
HOME Regulatory Agreement (the "New County Loan Funds").
F. In addition to the Loan Agreement, the Combined County Loan is evidenced by
the following documents: (i) a deed of trust with assignment of rents, security agreement, and
fixture filing of even date herewith, among Borrower, as trustor, North American Title
Company, as trustee, and the County, as beneficiary; (ii) an intercreditor agreement of even date
herewith among the City of Antioch, the County, and Borrower; (iii) three (3) promissory notes
executed by Borrower of even date herewith, for the existing loan portions of the Combined
County Loan assumed by Borrower, and the newly funded portion of the Combined County
Loan; and (iv) four (4) regulatory agreements associated with the Development and the Terrace
Glen Property, including this HOME Regulatory Agreement and the County Regulatory
Agreement, executed by Borrower of even date herewith, (collectively, the "Loan Documents ").
The Loan Documents are described in more detail in the Loan Agreement.
G. The County has the authority to lend the Combined County 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 the HOME Funds pursuant to 24 C.F.R. 92.205.
H. The County has agreed to make the Combined County Loan on the condition that
Borrower maintain and operate the Development in accordance with restrictions set forth in this
HOME Regulatory Agreement and the County Regulatory Agreement, and in the related
documents evidencing the Combined County Loan. Three (3) of the Units are restricted by the
County pursuant to this HOME Regulatory Agreement.
I. Fourteen (14) of the Units are restricted by the County pursuant the County
Regulatory Agreement (including the units restricted by this HOME Regulatory Agreement after
the expiration of the HOME Term). This HOME Regulatory Agreement supersedes in its
entirety the Regulatory Agreement dated September 18, 2000, recorded against the Property on
September 21, 2000, as Instrument No.2000-204510.
J. As it applies to the HOME-Assisted Units this HOME Regulatory Agreement will
be in effect for the HOME Term. The County Regulatory Agreement as it applies to the HOME-
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 6.16 below, compliance
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863\107\2383450.2
with the terms of this HOME Regulatory Agreement will be deemed compliance with the County
Regulatory Agreement during the HOME Term with respect to the HOME-Assisted Units.
K. In consideration of receipt of the Combined County 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) "Accessibility Requirements" has the meaning set forth in Section 2.1(c).
(b) "Actual Household Size" means the actual number of persons in the
applicable household.
(c) "Adjusted Income" means with respect to the Te nant of each HOME-
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).
(d) "Antioch Scattered Site Development" has the meaning set forth in
Paragraph D of the Recitals.
(e) "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),
used to calculate Rent, provided that if a different calculation is required by the HOME
regulations, such calculation must be used for the HOME-Assisted Units.
(f) "City" means the City of Antioch, California, a municipal corporation.
(g) "Combined County Loan" has the meaning set forth in Paragraph D of the
Recitals.
(h) "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.
(i) "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 Combined County Loan, to be recorded
against the Property concurrently herewith.
October 16, 2018 BOS Minutes 870
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(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,
North American Title Company, as trustee, and the County, as beneficiary, that encumbers the
Property to secure repayment of the Combined County Loan and Borrower's performance of the
Loan Documents.
(k) "Development" has the meaning set forth in Paragraph C of the Recitals.
(l) "Development Regulatory Documents" has the meaning set forth in
Section 4.2(a).
(m) "Existing Tenants" means the tenants that occupy the HOME-Assisted
Units on the date of Borrower's acquisition of the Property.
(n) "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.
(o) "High HOME Rent" means a monthly Rent that does not exceed the
maximum rent published by HUD for a Low Income Household for the applicable bedroom size
as set forth in 24 C.F.R. 92.252(a).
(p) "HOME" has the meaning set forth in Paragraph B of the Recitals.
(q) "HOME-Assisted Units" means the three (3) Units to be rehabilitated on
the Property that are (i) restricted to occupancy by Very Low Income Households in compliance
with Section 2.1 below, and (ii) are "floating" Units as defined in 24 C.F.R. 92.252(j).
(r) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals.
(s) "HOME Term" means the term of this HOME Regulatory Agreement
which commences as of the date of this HOME Regulatory Agreement, and unless sooner
terminated pursuant to the terms of this HOME Regulatory Agreement, expires on the sixteenth
(16th) 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 eighteenth (18th)
anniversary of this HOME Regulatory Agreement.
(t) "HOME Regulatory Agreement" has the meaning set forth in the first
paragraph of this HOME Regulatory Agreement.
(u) "HUD" has the meaning set forth in Paragraph B of the Recitals.
(v) "Investor Limited Partner" means, RSEP Holding, LLC, a Delaware
limited liability company.
(w) "Loan Agreement" has the meaning set forth in Paragraph D of the
Recitals.
October 16, 2018 BOS Minutes 871
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(x) "Loan Documents" has the meaning set forth in Paragraph F of the
Recitals.
(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 (i) 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, and (ii)
that is not an individual student not eligible to receive Section 8 assistance under 24 C.F.R.
5.612.
(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
shall provide Borrower with other income determinations that are reasonably similar with respect
to methods of calculation to those previously published by HUD.
(dd) "New County Loan Funds" has the meaning set forth in Paragraph E of the
Recitals.
(ee) "Operating Budget" has the meaning set forth in Section 2.5(a).
(ff) "Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated on or about November 1, 2018, that governs the operation and
organization of Borrower as a California limited partnership.
(gg) "Property" has the meaning set forth in Paragraph C of the Recitals.
(hh) "RCD" means Resources for Community Development, a California
nonprofit public benefit corporation.
(ii) "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
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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.
(jj) "Rental Subsidy" has the meaning set forth in Section 2.5(a).
(kk) "Seller" has the meaning set forth in Paragraph C of the Recitals.
(ll) "Subsidy Units" has the meaning set forth in Section 2.5(a).
(mm) "Tenant" means the tenant household that occupies a Unit in the
Development.
(nn) "Tenant Selection Plan" has the meaning set forth in Section 4.3(b).
(oo) "Terrace Glen Property" has the meaning set forth in Paragraph D of the
Recitals.
(pp) "Transfer" has the meaning set forth in Section 6.1.
(qq) "Unit(s)" means one (1) or more of the units in the Development.
(rr) "Very Low Income Household" means a household (i) with an Adjusted
Income that does not exceed fifty percent (50%) of Median Income, with adjustments for smaller
and larger families, except that HUD may establish income ceilings higher or lower than fifty
percent (50%) 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 set forth in 24 C.F.R. Section 92.2, and (ii) that is not an individual student
not eligible to receive Section 8 assistance under 24 C.F.R. 5.612.
(ss) "Very Low Income Rent" means the maximum allowable rent for a Very
Low Income Unit pursuant to Section 2.2(a) below.
(tt) "Very Low Income Units" means the Units which, pursuant to Section
2.1(a) below, are required to be occupied by Very Low Income Households.
ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a) Very Low Income Units. During the HOME Term Borrower shall cause
three (3) Units to be rented to and occupied by or, if vacant, available for occupancy by, Very
Low Income Households.
(b) Intermingling of Units. Borrower shall cause the HOME-Assisted Units
to be intermingled throughout the Development and of comparable quality to all other Units. All
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Tenants must have equal access to and enjoyment of all common facilities in the Development.
The HOME-Assisted Units must be of the bedroom size set forth in the following chart:
Very Low
Income Units
One-Bd. 3
(c) Disabled Persons Occupancy.
(1) Borrower shall cause the Development to be operated at all times
in compliance with all applicable federal, state, and local disabled persons accessibility
requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the
California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of
1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities
Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations,
which relate to disabled persons access (collectively, the "Accessibility Requirements ").
(2) 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 the Accessibility Requirements. This obligation
to indemnify survives termination of this HOME Regulatory Agreement, repayment of the
Combined County Loan and the reconveyance of the Deed of Trust.
(d) Existing Tenants. Borrower shall provide the County a written report of
the income and rent amount of all Existing Tenants within thirty (30) days of acquisition of the
Development. Concurrent with providing the report to the County, Borrower shall also provide a
proposal regarding designation of Units as Very Low Income Units. Borrower shall not
implement any rent increases for Existing Tenants upon acquisition of the Development without
the approval of the County. Any Existing Tenant lawfully residing in the Development as of the
date of this Agreement is entitled to remain a resident of the Development if such Tenant does
not meet the income and other eligibility criteria of this Section 2.1. If and when such non-
qualifying Existing Tenant voluntarily vacates the Unit, Borrower shall rent such Unit to a Very
Low Income Household, as necessary to meet the provisions of this Section.
(e) HOME-Assisted Unit Compliance Deadline. Each HOME-Assisted Unit
must be rented to and occupied by a Very 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 New County Loan Funds,
with interest, in accordance with Section 2.10(c) of the Loan Agreement.
2.2 Allowable Rent.
(a) Very Low Income Rent. Subject to the provisions of Section 2.4 below,
the Rent paid by Tenants of Very Low Income Units ma y not exceed the Low HOME Rent.
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(b) No Additional Fees. Borrower may not charge any fee, other than Rent, to
any Tenant of the HOME-Assisted Units for any housing or other services provided by
Borrower.
2.3 Rent Increases.
(a) Rent Amount. The initial Rent for all HOME-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 HOME-Assisted Units and the maximum monthly
allowances for utilities and services (excluding telephone) annually.
(b) Rent Increases. All Rent increases for all HOME-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-Assisted Unit, Borrower shall submit to the County a
schedule of any proposed increase in the Rent charged for HOME-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-Assisted Units provided to Borrower by
the County, or is greater than a 5% increase over the previous year's Rent, provided that the
County may approve a request from Borrower for a rent increase greater than 5%, with a written
explanation for the request from Borrower. 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 Very Low Income but below Low Income Limit.
If, upon the annual certification of the income of a Tenant of a Very Low Income Unit, Borrower
determines that the income of the Tenant has increased above the qualifying limit for a Very
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 Low HOME
Rent. Borrower shall then rent the next available Unit to a Very 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 a Very Low Income Household a Very 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 a Very Low Income Unit, the Unit with the
over-income Tenant will no longer be considered a HOME-Assisted Unit.
(b) Non-Qualifying Household. If, upon the annual certification of the
income a Tenant of a HOME-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
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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 a Very 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 designate another comparable Unit that is occupied by a Very
Low Income Household as a HOME-Assisted Unit, to meet the requirements of Section 2.1(a)
above. On the day that Borrower complies with Section 2.1(a) in accordance with this Section
2.4(b), the Unit with the over-income Tenant will no longer be considered a HOME-Assisted
Unit.
(c) Termination of Occupancy. Upon termination of occupancy of a HOME-
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.
2.5 Loss of Subsidy.
(a) It is anticipated that certain Units in the Development (the "Subsidy
Units") will receive Project-Based Section 8 or other rental subsidy payments (the "Rental
Subsidy") throughout the Term, as reflected in the Approved Development Budget.
Notwithstanding Section 2.3(b), if any change in federal law occurs, or any action (or inaction)
by Congress or any federal or State agency occurs, which results in a reduction, termination or
nonrenewal of the Rental Subsidy through no fault of the Borrower, such that the Rental Subsidy
shown on the Approved Development Budget is no longer available, Borrower may increase the
Rent on one or more of the HOME-Assisted Units that overlap with a Subsidy Unit, to the Low
HOME Rent and/or High HOME Rent as applicable, subject to the following requirements:
(1) At the time Borrower requests an increase in the Rent, Borrower
shall provide the County with an operating budget for the Development for the County's
approval pursuant to Section 4.4 of the Loan Agreement, showing the impact of the loss or
reduction of the Rental Subsidy (the "Operating Budget");
(2) The number of HOME-Assisted Units subject to the Rent increase
and the level of rent increase (i.e. Low HOME Rent and High HOME Rent) may not be greater
than the amount required to ensure that the Development generates sufficient income to cover its
operating costs and debt service as shown on the Operating Budget, and as is necessary to
maintain the financial stability of the Development;
(3) The Rent of at least one (1) of the HOME-Assisted Units may not
exceed the Low HOME Rent;
(4) Borrower shall use good faith efforts to ensure that the Tenants
whose Rents are increased to the High HOME Rent have the highest incomes of the Tenants
occupying the HOME-Assisted Units; and
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(5) Any such Rent increase must be pursuant to a transition plan
approved by the County, consistent with remedial measures set forth in California Code of
Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or successor regulation
applicable to California's Federal and State Low Income Housing Tax Credit Program.
(b) Borrower shall use good faith efforts to obtain alternative sources of rental
subsidies and shall provide the County with annual progress reports on efforts to obtain
alternative sources of rental subsidies that would allow the rents on the HOME Assisted Units to
be reduced back to the Very Low Income Rent. Upon receipt of any alternative rental subsidies,
Borrower shall reduce the rents on the County-Assisted Units back to the Very Low Income
Rent, to the extent that the alternative rental subsidies provide sufficient income to cover the
operating costs and debt service of the Development as shown on the Operating Budget.
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-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-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-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.
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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 HOME 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 the ir 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 Combined County 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 Combined
County 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. Such records are to include but are not limited to:
(1) Records providing a full description of the activities undertaken
with the use of the Combined County Loan funds;
(2) 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);
(3) Records documenting compliance with the fair housing, equal
opportunity, and affirmative fair marketing requirements;
(4) Financial records as required by 24 C.F.R. 92.505, and 2 C.F.R.
Part 200;
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(5) Records demonstrating compliance with the HOME marketing,
tenant selection, affordability, and income requirements;
(6) Records demonstrating compliance with MBE/WBE requirements;
(7) Records demonstrating compliance with 24 C.F.R. Part 135 which
implements Section 3 of the Housing Development Act of 1968;
(8) 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; and
(9) Records demonstrating compliance with labor requirements
including certified payrolls from Borrower's general contractor evidencing that applicable
prevailing wages have been paid.
(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 Regulatory Requirements.
(a) 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; and (iii) any other regulatory
requirements imposed on the Development including but not limited to regulatory agreements
associated with the Low Income Housing Tax Credits provided by the California Tax Credit
Allocation Committee, and rental subsidies provided to the Development (the "Development
Regulatory Documents ").
(b) Borrower shall promptly notify the County in writing of the existence of
any default under any Development Regulatory Documents, and provide the County copies of
any such notice of default.
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4.3 Marketing Plan; Tenant Selection Plan.
(a) Marketing Plan.
(1) No later than six (6) months prior to the date rehabilitation 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
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 rehabilitation of the Development is projected to be complete,
Borrower will be in default of this HOME Regulatory Agreement.
(3) If any HOME-Assisted Units have not been rented in accordance
with Section 2.1 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-Assisted Units to be rented in compliance with Section 2.1.
(4) If any HOME-Assisted Units have not been rented to in
accordance with Section 2.1 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-Assisted Units to be rented in compliance with
Section 2.1.
(b) Tenant Selection Plan.
(1) No later than six (6) months prior to the date rehabilitation 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
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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 rehabilitation of the
Development is projected to be complete, Borrower will be in default of this HOME Regulatory
Agreement.
4.4 Lease Provisions.
(a) No later than four (4) months prior to the date rehabilitation 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 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 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 Regulatory Agreement, or (ii) qualify as a Very 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; and
(3) include a provision that requires a Tenant who is residing in a Unit
required to be accessible pursuant to Section 3.9(b) of the Loan Agreement, 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-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.
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4.6 HOME 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. In the event of any conflict
between this HOME Regulatory Agreement and applicable laws and regulations governing the
use of the Combined County Loan funds, the applicable laws and regulations govern.
(b) The laws and regulations governing the use of the Combined County Loan
funds include (but are not limited to) the following:
(1) 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;
(2) 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 and 24 C.F.R. 92.505;
(3) 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;
(4) 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;
(5) 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;
(6) 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. (if applicable);
and 24 C.F.R. 92.353;
(7) 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
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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;
(8) 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;
(9) 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 language
in all subcontracts executed under this HOME Regulatory Agreement:
(i) 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.
(ii) 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.
(iii) The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective bargaining agreement or
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.
(iv) 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.
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(v) 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.
(vi) 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.
(vii) 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).
(8) Labor Standards. The labor requirements set forth in 24
C.F.R. 92.354; 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;
(9) 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;
(10) 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;
(11) 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;
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(12) Religious Organizations. If the Borrower is a religious
organization, as defined by the HOME requirements, the Borrower shall comply with all
conditions prescribed by HUD for the use of HOME 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;
(13) 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;
(14) Conflict of Interest. The conflict of interest provisions set
forth in 24 C.F.R. 92.356; and
(15) HUD Regulations. Any other HUD regulations present or
as may be amended, added, or waived in the future pertaining to the Combined County 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 management representative is required to reside at the Property.
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 the John Stewart
Company 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
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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 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
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 HOME Regulatory Agreement, and the
County may enforce this provision through legal proce edings 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 HOME Regulatory Agreement.
5.6 Property Maintenance.
(a) Borrower shall maintain, for the entire HOME Term of this HOME
Regulatory Agreement, all interior and exterior improvements, including landscaping: (i) in
decent, safe and sanitary condition, (ii) in good condition and repair, and (iii) free of all health
and safety defects. Such maintenance must be in accordance with: (i) 24 C.F.R. Section 92.251,
(ii) the lead-based paint requirements in 24 C.F.R. part 35, and (iii) 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, (collectively, the "Maintenance Standards"). 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.
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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 rehabilitation of the Development and at least once every three (3) years
during the 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 Transfers.
(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 the Loan
Documents; 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 this HOME Regulatory
Agreement. The County 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 6.1, no Transfer is permitted
without the prior written consent of the County, which the County may withhold in its sole
discretion. The Combined County Loan will automatically accelerate and be due in full upon
any Transfer made without the prior written consent of the County.
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(c) The County hereby approves the admission of the Investor Limited Partner
and Red Stone Equity Manager, LLC, a Delaware limited liability company, to Borrower as
limited partners. 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
RCD, or a non-profit affiliate of RCD, and an assumption of the Combined County Loan by such
transferee at or prior to 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, (ii) the assignment and assumption agreement evidencing such Transfer requires the
transferee to expressly assume the obligations of Borrower under the Loan Documents, and (iii)
the County is provided executed copies of all documents evidencing the Transfer.
(e) The County hereby approves the purchase of the Investor Limited Partner
interest by RCD, or a non-profit affiliate of RCD at or prior to 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 County is provided
executed copies of all documents evidencing the Transfer.
(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 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, 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.
(g) The County hereby approves the grant of the security interests in the
Development for Approved Financing as such term is defined in Section 1.1(f) of the Loan
Agreement.
6.2 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
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
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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
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.
6.3 Application of Provisions. The provisions of this HOME Regulatory Agreement
apply to the Property for the entire HOME Term even if the Combined County Loan is paid in
full prior to the end of the HOME Term. This HOME 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 Combined County Loan on the condition, and in consideration of, this
provision, and would not do so otherwise.
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 HOME 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 Regulatory Agreement.
6.5 Enforcement by the County.
(a) If Borrower fails to perform any obligation under this HOME Regulatory
Agreement, and fails to cure the default within thirty (30) days after the County has notified
Borrower in writing of the default, the County may enforce this HOME Regulatory Agreement
by any or all of the following actions, or any other remedy provided by law:
(1) Calling the Combined County Loan. The County may declare a
default under the Loan Documents, accelerate the indebtedness evidenced by the Loan
Documents, and proceed with foreclosure under the Deed of Trust.
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(2) 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 Regulatory Agreement, and may seek damages.
(3) Remedies Provided Under Loan Documents. The County may
exercise any other remedy provided under the Loan Documents.
(b) The County shall provide notice of a default to the Investor Limited
Partner and any limited partner of Borrower who has requested written notice from the County in
the manner set forth in Section 6.5 of the Loan Agreement.
6.6 Anti-Lobbying Certification.
(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.
6.7 Attorneys' Fees and Costs. In any action brought to enforce this HOME
Regulatory Agreement, the prevailing party must be entitled to all costs and expenses of suit,
including reasonable attorneys' fe es. This section must be interpreted in accordance with
California Civil Code Section 1717 and judicial decisions interpreting that statute.
6.8 Recording and Filing. The County and Borrower shall cause this HOME
Regulatory Agreement, and all amendments and supplements to it, to be recorded in the Official
Records of the County of Contra Costa.
6.9 Governing Law. This HOME Regulatory Agreement is governed by the laws of
the State of California.
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6.10 Waiver of Requirements. Any of the requirements of this HOME Regulatory
Agreement may be expressly waived by the County in writing, but no waiver by the County of
any requirement of this HOME Regulatory Agreement extends to or affects any other provision
of this HOME Regulatory Agreement, and may not be deemed to do so.
6.11 Amendments. This HOME 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.
6.12 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: Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
Investor Limited
Partner: RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
Such addresses may be changed by notice to the other party given in the same manner as
provided above.
6.13 Severability. If any provision of this HOME 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 Regulatory Agreement will not in
any way be affected or impaired thereby.
6.14 Multiple Originals; Counterparts. This HOME Regulatory Agreement may be
executed in multiple originals, each of which is deemed to be an original, and may be signed in
counterparts.
6.15 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the
Property, this HOME Regulatory Agreement will revive according to its original terms if, during
the HOME Term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or
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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.
6.16 County Regulatory Agreement. The County and Borrower are entering into this
HOME Regulatory Agreement concurrently with the County Regulatory Agreement. The
County Regulatory Agreement as it applies to the HOME-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 Regulatory Agreement will be deemed
compliance with the County Regulatory Agreement during the HOME Term as it applies to the
HOME-Assisted Units. In the event of a conflict between this HOME Regulatory Agreement
and the County Regulatory Agreement during the HOME Term as it applies to the HOME-
Assisted Units, the terms of this HOME Regulatory Agreement will prevail.
[signatures on following pages]
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Signature page
Pinecrest HOME Regulatory Agreement
863\107\2383450.2
WHEREAS, this HOME 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:
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III, LLC,
a California limited liability company,
its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation its sole
member/manager
By:_________________________
Daniel Sawislak, Executive Director
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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: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, 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: ______________________________
Name: Notary Public
A notary public or other officer completing this certifica te verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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EXHIBIT A
Legal Description
(Pinecrest)
The land is situated in the State of California, County of Contra Costa, and is described as
follows:
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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 and 27388.1
__________________________________________________________________________
HOME REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Antioch Scattered Site Renovation
(Terrace Glen New HOME Units)
This HOME Regulatory Agreement and Declaration of Restrictive Covenants (the
"HOME Regulatory Agreement") is dated November 1, 2018 and is between the County of
Contra Costa, a political subdivision of the State of California (the "County"), and Antioch
Recap, 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 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. Borrower intends to purchase that certain real property located at 35, 45, 101,
103, 105 and 107 W. 20th Street, and 104 and 106 W. 20th Street in the City of Antioch, County
of Contra Costa, State of California, as more particularly described in Exhibit A (the "Property")
from Resources for Community Development, a California nonprofit public benefit corporation,
a California limited partnership (the "Seller" or "RCD"). Borrower intends to rehabilitate the
existing thirty-two (32) housing units located on the Property for rental to extremely low, very
low and low income households, along with one (1) manager's unit. Together the Property and
its improvements are the "Development".
D. Pursuant to a Development Loan Agreement of even date herewith between the
County and Borrower (the "Loan Agreement"), the County is lending Borrower Three Million
Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962) (the "Combined
County Loan") to assist in the rehabilitation of the Development, and the concurrent
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rehabilitation of twenty-four (24) units of affordable housing located at 1945 and 1949 Cavallo
Road in the City of Antioch (the "Pinecrest Property"). The Development and the Pinecrest
Property are collectively referred to as the "Antioch Scattered Site Development." The
Combined County Loan includes restructured existing financing associated with the Antioch
Scattered Site Development, as well as new financing, to assist in the rehabilitation of the
Antioch Scattered Site Development.
E. The Combined County Loan includes: (i) Eight Hundred Fifty-Six Thousand
Dollars ($856,000) of HOME Funds previously loaned to the Seller and restructured pursuant to
the Loan Agreement; (ii) Six Hundred Twenty-Five Thousand Dollars ($625,000) of HOME
Funds previously loaned to the owner of the Pinecrest Property and restructured pursuant to the
Loan Agreement; and (iii) One Million Three Hundred Thousand Dollars ($1,300,000) in HOME
Funds to be loaned to Borrower by the County, concurrent with the execution of this HOME
Regulatory Agreement (the "New County Loan Funds").
F. In addition to the Loan Agreement, the Combined County Loan is evidenced by
the following documents: (i) a deed of trust with assignment of rents, security agreement, and
fixture filing of even date herewith, among Borrower, as trustor, North American Title
Company, as trustee, and the County, as beneficiary; (ii) an intercreditor agreement of even date
herewith among the City of Antioch, the County, and Borrower; (iii) three (3) promissory notes
executed by Borrower of even date herewith, for the existing loan portions of the Combined
County Loan assumed by Borrower, and the newly funded portion of the Combined County
Loan; and (iv) four (4) regulatory agreements associated with the Development and the Pinecrest
Property, including this HOME Regulatory Agreement and the County Regulatory Agreement,
executed by Borrower of even date herewith, (collectively, the "Loan Documents "). The Loan
Documents are described in more detail in the Loan Agreement.
G. The County has the authority to lend the Combined County 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 the HOME Funds pursuant to 24 C.F.R. 92.205.
H. The County has agreed to make the Combined County Loan on the condition that
Borrower maintain and operate the Development in accordance with restrictions set forth in this
HOME Regulatory Agreement and the County Regulatory Agreement, and in the related
documents evidencing the Combined County Loan. Five (5) of the Units are restricted by the
County pursuant to this HOME Regulatory Agreement.
I. Twenty-one (21) of the Units are restricted by the County pursuant the County
Regulatory Agreement (including the units restricted by this HOME Regulatory Agreement after
the expiration of the HOME Term). This HOME Regulatory Agreement supersedes in its
entirety the Regulatory Agreement dated November 4, 1996, recorded against the Property on
November 6, 1996, as Instrument No. 96-210492, as amended by a First Amendment to
Regulatory Agreement dated August 5, 1998 and recorded against the Property on August 25,
1998, as Instrument No. 98-202840.
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J. As it applies to the HOME-Assisted Units this HOME Regulatory Agreement will
be in effect for the HOME Term. The County Regulatory Agreement as it applies to the HOME-
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 6.16 below, compliance
with the terms of this HOME Regulatory Agreement will be deemed compliance with the County
Regulatory Agreement during the HOME Term with respect to the HOME-Assisted Units.
K. In consideration of receipt of the Combined County 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) "Accessibility Requirements" has the meaning set forth in Section 2.1(c).
(b) "Actual Household Size" means the actual number of persons in the
applicable household.
(c) "Adjusted Income" means with respect to the Tenant of each HOME-
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).
(d) "Antioch Scattered Site Development" has the meaning set forth in
Paragraph D of the Recitals.
(e) "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),
used to calculate Rent, provided that if a different calculation is required by the HOME
regulations, such calculation must be used for the HOME-Assisted Units.
(f) "City" means the City of Antioch, California, a municipal corporation.
(g) "Combined County Loan" has the meaning set forth in Paragraph D of the
Recitals.
(h) "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.
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(i) "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 Combined County Loan, to be recorded
against the Property concurrently herewith.
(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,
North American Title Company, as trustee, and the County, as beneficiary, that encumbers the
Property to secure repayment of the Combined County Loan and Borrower's performance of the
Loan Documents.
(k) "Development" has the meaning set forth in Paragraph C of the Recitals.
(l) "Development Regulatory Documents" has the meaning set forth in
Section 4.2(a).
(m) "Existing Tenants" means the tenants that occupy the HOME-Assisted
Units on the date of Borrower's acquisition of the Property.
(n) "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.
(o) "High HOME Rent" means a monthly Rent that does not exceed the
maximum rent published by HUD for a Low Income Household for the applicable bedroom size
as set forth in 24 C.F.R. 92.252(a).
(p) "HOME" has the meaning set forth in Paragraph B of the Recitals.
(q) "HOME-Assisted Units" means the five (5) Units to be rehabilitated on
the Property that are (i) restricted to occupancy by Very Low Income Households in compliance
with Section 2.1 below, and (ii) are "floating" Units as defined in 24 C.F.R. 92.252(j).
(r) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals.
(s) "HOME Term" means the term of this HOME Regulatory Agreement
which commences as of the date of this HOME Regulatory Agreement, and unless sooner
terminated pursuant to the terms of this HOME Regulatory Agreement, expires on the sixteenth
(16th) 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 eighteenth (18th)
anniversary of this HOME Regulatory Agreement.
(t) "HOME Regulatory Agreement" has the meaning set forth in the first
paragraph of this HOME Regulatory Agreement.
(u) "HUD" has the meaning set forth in Paragraph B of the Recitals.
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(v) "Investor Limited Partner" means, RSEP Holding, LLC, a Delaware
limited liability company.
(w) "Loan Agreement" has the meaning set forth in Paragraph D of the
Recitals.
(x) "Loan Documents" has the meaning set forth in Paragraph F of the
Recitals.
(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 (i) 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, and (ii)
that is not an individual student not eligible to receive Section 8 assistance under 24 C.F.R.
5.612.
(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
shall provide Borrower with other income determinations that are reasonably similar with respect
to methods of calculation to those previously published by HUD.
(dd) "New County Loan Funds" has the meaning set forth in Paragraph E of the
Recitals.
(ee) "Operating Budget" has the meaning set forth in Section 2.5(a).
(ff) "Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated on or about November 1, 2018, that governs the operation and
organization of Borrower as a California limited partnership.
(gg) "Pinecrest Property" has the meaning set forth in Paragraph D of the
Recitals.
(hh) "Property" has the meaning set forth in Paragraph C of the Recitals.
(ii) "RCD" has the meaning set forth in Paragraph C of the Recitals.
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(jj) "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.
(kk) "Rental Subsidy" has the meaning set forth in Section 2.5(a).
(ll) "Seller" has the meaning set forth in Paragraph C of the Recitals.
(mm) "Subsidy Units" has the meaning set forth in Section 2.5(a).
(nn) "Tenant" means the tenant household that occupies a Unit in the
Development.
(oo) "Tenant Selection Plan" has the meaning set forth in Section 4.3(b).
(pp) "Transfer" has the meaning set forth in Section 6.1.
(qq) "Unit(s)" means one (1) or more of the units in the Development.
(rr) "Very Low Income Household" means a household (i) with an Adjusted
Income that does not exceed fifty percent (50%) of Median Income, with adjustments for smaller
and larger families, except that HUD may establish income ceilings higher or lower than fifty
percent (50%) 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 set forth in 24 C.F.R. Section 92.2, and (ii) that is not an individual student
not eligible to receive Section 8 assistance under 24 C.F.R. 5.612.
(ss) "Very Low Income Rent" means the maximum allowable rent for a Very
Low Income Unit pursuant to Section 2.2(a) below.
(tt) "Very Low Income Units" means the Units which, pursuant to Section
2.1(a) below, are required to be occupied by Very Low Income Households.
ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a) Very Low Income Units. During the HOME Term Borrower shall cause
five (5) Units to be rented to and occupied by or, if vacant, available for occupancy by, Very
Low Income Households.
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(b) Intermingling of Units. Borrower shall cause the HOME-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-Assisted Units must be of the bedroom size set forth in the following chart:
Very Low
Income Units
Two-Bd. 4
Three-Bd. 1
Total 5
(c) Disabled Persons Occupancy.
(1) Borrower shall cause the Development to be operated at all times
in compliance with all applicable federal, state, and local disabled persons accessibility
requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the
California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of
1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities
Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations,
which relate to disabled persons access (collectively, the "Accessibility Requirements ").
(2) 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 the Accessibility Requirements. This obligation
to indemnify survives termination of this HOME Regulatory Agreement, repayment of the
Combined County Loan and the reconveyance of the Deed of Trust.
(d) Existing Tenants. Borrower shall provide the County a written report of
the income and rent amount of all Existing Tenants within thirty (30) days of acquisition of the
Development. Concurrent with providing the report to the County, Borrower shall also provide a
proposal regarding designation of Units as Very Low Income Units. Borrower shall not
implement any rent increases for Existing Tenants upon acquisition of the Development without
the approval of the County. Any Existing Tenant lawfully residing in the Development as of the
date of this Agreement is entitled to remain a resident of the Development if such Tenant does
not meet the income and other eligibility criteria of this Section 2.1. If and when such non-
qualifying Existing Tenant voluntarily vacates the Unit, Borrower shall rent such Unit to a Very
Low Income Household, as necessary to meet the provisions of this Section.
(e) HOME-Assisted Unit Compliance Deadline. Each HOME-Assisted Unit
must be rented to and occupied by a Very 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 New County Loan Funds,
with interest, in accordance with Section 2.10(c) of the Loan Agreement.
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2.2 Allowable Rent.
(a) Very Low Income Rent. Subject to the provisions of Section 2.4 below,
the Rent paid by Tenants of Very Low Income Units ma y not exceed the Low HOME Rent.
(b) No Additional Fees. Borrower may not charge any fee, other than Rent, to
any Tenant of the HOME-Assisted Units for any housing or other services provided by
Borrower.
2.3 Rent Increases.
(a) Rent Amount. The initial Rent for all HOME-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 HOME-Assisted Units and the maximum monthly
allowances for utilities and services (excluding telephone) annually.
(b) Rent Increases. All Rent increases for all HOME-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-Assisted Unit, Borrower shall submit to the County a
schedule of any proposed increase in the Rent charged for HOME-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-Assisted Units provided to Borrower by
the County, or is greater than a 5% increase over the previous year's Rent, provided that the
County may approve a request from Borrower for a rent increase greater than 5%, with a written
explanation for the request from Borrower. 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 Very Low Income but below Low Income Limit.
If, upon the annual certification of the income of a Tenant of a Very Low Income Unit, Borrower
determines that the income of the Tenant has increased above the qualifying limit for a Very
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 Low HOME
Rent. Borrower shall then rent the next available Unit to a Very 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 a Very Low Income Household a Very 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 a Very Low Income Unit, the Unit with the
over-income Tenant will no longer be considered a HOME-Assisted Unit.
(b) Non-Qualifying Household. If, upon the annual certification of the
income a Tenant of a HOME-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:
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(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 a Very 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 designate another comparable Unit that is occupied by a Very
Low Income Household as a HOME-Assisted Unit, to meet the requirements of Section 2.1(a)
above. On the day that Borrower complies with Section 2.1(a) in accordance with this Section
2.4(b), the Unit with the over-income Tenant will no longer be considered a HOME-Assisted
Unit.
(c) Termination of Occupancy. Upon termination of occupancy of a HOME-
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.
2.5 Loss of Subsidy.
(a) It is anticipated that certain Units in the Development (the "Subsidy
Units") will receive Project-Based Section 8 or other rental subsidy payments (the "Rental
Subsidy") throughout the Term, as reflected in the Approved Development Budget.
Notwithstanding Section 2.3(b), if any change in federal law occurs, or any action (or inaction)
by Congress or any federal or State agency occurs, which results in a reduction, termination or
nonrenewal of the Rental Subsidy through no fault of the Borrower, such that the Rental Subsidy
shown on the Approved Development Budget is no longer available, Borrower may increase the
Rent on one or more of the HOME-Assisted Units that overlap with a Subsidy Unit, to the Low
HOME Rent and/or High HOME Rent as applicable, subject to the following requirements:
(1) At the time Borrower requests an increase in the Rent, Borrower
shall provide the County with an operating budget for the Development for the County's
approval pursuant to Section 4.4 of the Loan Agreement, showing the impact of the loss or
reduction of the Rental Subsidy (the "Operating Budget");
(2) The number of HOME-Assisted Units subject to the Rent increase
and the level of rent increase (i.e. Low HOME Rent and High HOME Rent) may not be greater
than the amount required to ensure that the Development generates sufficient income to cover its
operating costs and debt service as shown on the Operating Budget, and as is necessary to
maintain the financial stability of the Development;
(3) The Rent of at least one (1) of the HOME-Assisted Units may not
exceed the Low HOME Rent;
(4) Borrower shall use good faith efforts to ensure that the Tenants
whose Rents are increased to the High HOME Rent have the highest incomes of the Tenants
occupying the HOME-Assisted Units; and
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(5) Any such Rent increase must be pursuant to a transition plan
approved by the County, consistent with remedial measures set forth in California Code of
Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or successor regulation
applicable to California's Federal and State Low Income Housing Tax Credit Program.
(b) Borrower shall use good faith efforts to obtain alternative sources of rental
subsidies and shall provide the County with annual progress reports on efforts to obtain
alternative sources of rental subsidies that would allow the rents on the HOME Assisted Units to
be reduced back to the Very Low Income Rent. Upon receipt of any alternative rental subsidies,
Borrower shall reduce the rents on the County-Assisted Units back to the Very Low Income
Rent, to the extent that the alternative rental subsidies provide sufficient income to cover the
operating costs and debt service of the Development as shown on the Operating Budget.
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-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-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-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.
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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 HOME 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 the ir 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 Combined County 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 Combined
County 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. Such records are to include but are not limited to:
(1) Records providing a full description of the activities undertaken
with the use of the Combined County Loan funds;
(2) 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);
(3) Records documenting compliance with the fair housing, equal
opportunity, and affirmative fair marketing requirements;
(4) Financial records as required by 24 C.F.R. 92.505, and 2 C.F.R.
Part 200;
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(5) Records demonstrating compliance with the HOME marketing,
tenant selection, affordability, and income requirements;
(6) Records demonstrating compliance with MBE/WBE requirements;
(7) Records demonstrating compliance with 24 C.F.R. Part 135 which
implements Section 3 of the Housing Development Act of 1968;
(8) 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; and
(9) Records demonstrating compliance with labor requirements
including certified payrolls from Borrower's general contractor evidencing that applicable
prevailing wages have been paid.
(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 Regulatory Requirements.
(a) 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; and (iii) any other regulatory
requirements imposed on the Development including but not limited to regulatory agreements
associated with the Low Income Housing Tax Credits provided by the California Tax Credit
Allocation Committee, and rental subsidies provided to the Development (the "Development
Regulatory Documents ").
(b) Borrower shall promptly notify the County in writing of the existence of
any default under any Development Regulatory Documents, and provide the County copies of
any such notice of default.
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4.3 Marketing Plan; Tenant Selection Plan.
(a) Marketing Plan.
(1) No later than six (6) months prior to the date rehabilitation 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
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 rehabilitation of the Development is projected to be complete,
Borrower will be in default of this HOME Regulatory Agreement.
(3) If any HOME-Assisted Units have not been rented in accordance
with Section 2.1 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-Assisted Units to be rented in compliance with Section 2.1.
(4) If any HOME-Assisted Units have not been rented to in
accordance with Section 2.1 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-Assisted Units to be rented in compliance with
Section 2.1.
(b) Tenant Selection Plan.
(1) No later than six (6) months prior to the date rehabilitation 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
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approved by the County at least three (3) months prior to the date rehabilitation of the
Development is projected to be complete, Borrower will be in default of this HOME Regulatory
Agreement.
4.4 Lease Provisions.
(a) No later than four (4) months prior to the date rehabilitation 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 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 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 Regulatory Agreement, or (ii) qualify as a Very 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; and
(3) include a provision that requires a Tenant who is residing in a Unit
required to be accessible pursuant to Section 3.9(b) of the Loan Agreement, 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-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.
4.6 HOME 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. In the event of any conflict
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between this HOME Regulatory Agreement and applicable laws and regulations governing the
use of the Combined County Loan funds, the applicable laws and regulations govern.
(b) The laws and regulations governing the use of the Combined County Loan
funds include (but are not limited to) the following:
(1) 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;
(2) 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 and 24 C.F.R. 92.505;
(3) 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;
(4) 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;
(5) 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;
(6) 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. (if applicable);
and 24 C.F.R. 92.353;
(7) 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;
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(8) 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;
(9) 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 language
in all subcontracts executed under this HOME Regulatory Agreement:
(i) 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.
(ii) 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 othe r
impediment that would prevent them from complying with the Part 135 regulations.
(iii) The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective bargaining agreement or
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.
(iv) 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.
(v) 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
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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.
(vi) 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.
(vii) 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).
(10) Labor Standards. The labor requirements set forth in 24 C.F.R.
92.354; 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;
(11) 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;
(12) 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;
(13) 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;
(14) Religious Organizations. If the Borrower is a religious
organization, as defined by the HOME requirements, the Borrower shall comply with all
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conditions prescribed by HUD for the use of HOME 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;
(15) 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;
(16) Conflict of Interest. The conflict of interest provisions set forth in
24 C.F.R. 92.356; and
(17) HUD Regulations. Any other HUD regulations present or as may
be amended, added, or waived in the future pertaining to the Combined County 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 management representative is required to reside at the Property.
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 the John Stewart
Company 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
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accordance with the requirements and standards of this HOME 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
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 HOME 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 HOME Regulatory Agreement.
5.6 Property Maintenance.
(a) Borrower shall maintain, for the entire HOME Term of this HOME
Regulatory Agreement, all interior and exterior improvements, including landscaping: (i) in
decent, safe and sanitary condition, (ii) in good condition and repair, and (iii) free of all health
and safety defects. Such maintenance must be in accordance with: (i) 24 C.F.R. Section 92.251,
(ii) the lead-based paint requirements in 24 C.F.R. part 35, and (iii) 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, (collectively, the "Maintenance Standards"). 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
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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 rehabilitation of the Development and at least once every three (3) years during
the HOME Term. If the Development is found to have health and safety violatio ns , 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 Transfers.
(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 the Loan
Documents; 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 this HOME Regulatory
Agreement. The County 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 6.1, no Transfer is permitted
without the prior written consent of the County, which the County may withhold in its sole
discretion. The Combined County 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 the admission of the Investor Limited Partner
and Red Stone Equity Manager, LLC, a Delaware limited liability company, to Borrower as
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limited partners. 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
RCD, or a non-profit affiliate of RCD, and an assumption of the Combined County Loan by such
transferee at or prior to 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, (ii) the assignment and assumption agreement evidencing such Transfer requires the
transferee to expressly assume the obligations of Borrower under the Loan Documents, and (iii)
the County is provided executed copies of all documents evidencing the Transfer.
(e) The County hereby approves the purchase of the Investor Limited Partner
interest by RCD, or a non-profit affiliate of RCD at or prior to 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 County is provided
executed copies of all documents evidencing the Transfer.
(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 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, 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.
(g) The County hereby approves the grant of the security interests in the
Development for Approved Financing as such term is defined in Section 1.1(f) of the Loan
Agreement.
6.2 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
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
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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
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.
6.3 Application of Provisions. The provisions of this HOME Regulatory Agreement
apply to the Property for the entire HOME Term even if the Combined County Loan is paid in
full prior to the end of the HOME Term. This HOME 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 Combined County Loan on the condition, and in consideration of, this
provision, and would not do so otherwise.
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 HOME 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 Regulatory Agreement.
6.5 Enforcement by the County.
(a) If Borrower fails to perform any obligation under this HOME Regulatory
Agreement, and fails to cure the default within thirty (30) days after the County has notified
Borrower in writing of the default, the County may enforce this HOME Regulatory Agreement
by any or all of the following actions, or any other remedy provided by law:
(1) Calling the Combined County Loan. The County may declare a
default under the Loan Documents, accelerate the indebtedness evidenced by the Loan
Documents, and proceed with foreclosure under the Deed of Trust.
(2) 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 Regulatory Agreement, and may seek damages.
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(3) Remedies Provided Under Loan Documents. The County may
exercise any other remedy provided under the Loan Documents.
(b) The County shall provide notice of a default to the Investor Limited
Partner and any limited partner of Borrower who has requested written notice from the County in
the manner set forth in Section 6.5 of the Loan Agreement.
6.6 Anti-Lobbying Certification.
(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.
6.7 Attorneys' Fees and Costs. In any action brought to enforce this HOME
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.
6.8 Recording and Filing. The County and Borrower shall cause this HOME
Regulatory Agreement, and all amendments and supplements to it, to be recorded in the Official
Records of the County of Contra Costa.
6.9 Governing Law. This HOME Regulatory Agreement is governed by the laws of
the State of California.
6.10 Waiver of Requirements. Any of the requirements of this HOME Regulatory
Agreement may be expressly waived by the County in writing, but no waiver by the County of
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any requirement of this HOME Regulatory Agreement extends to or affects any other provision
of this HOME Regulatory Agreement, and may not be deemed to do so.
6.11 Amendments. This HOME 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.
6.12 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: Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
Investor Limited
Partner: RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
Such addresses may be changed by notice to the other party given in the same manner as
provided above.
6.13 Severability. If any provision of this HOME 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 Regulatory Agreement will not in
any way be affected or impaired thereby.
6.14 Multiple Originals; Counterparts. This HOME Regulatory Agreement may be
executed in multiple originals, each of which is deemed to be an original, and may be signed in
counterparts.
6.15 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the
Property, this HOME Regulatory Agreement will revive according to its original terms if, during
the HOME Term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or
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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.
6.16 County Regulatory Agreement. The County and Borrower are entering into this
HOME Regulatory Agreement concurrently with the County Regulatory Agreement. The
County Regulatory Agreement as it applies to the HOME-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 Regulatory Agreement will be deemed
compliance with the County Regulatory Agreement during the HOME Term as it applies to the
HOME-Assisted Units. In the event of a conflict between this HOME Regulatory Agreement
and the County Regulatory Agreement during the HOME Term as it applies to the HOME-
Assisted Units, the terms of this HOME Regulatory Agreement will prevail.
[remainder of page intentionally left blank]
[signatures on following pages]
October 16, 2018 BOS Minutes 921
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Signature page
Terrace Glen HOME Regulatory Agreement
863\107\2383076.2
WHEREAS, this HOME 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:
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III, LLC,
a California limited liability company,
its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation its sole
member/manager
By:_________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 922
863\107\2383076.2
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: ______________________________
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.
October 16, 2018 BOS Minutes 923
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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: ______________________________
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.
October 16, 2018 BOS Minutes 924
A-1
863\107\2383076.2
EXHIBIT A
Legal Description
(Terrace Glen)
The land is situated in the State of California, County of Contra Costa, and is described as
follows:
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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 and 27388.1
__________________________________________________________________________
COUNTY REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Antioch Scattered Site Renovation
(Pinecrest Existing Loan Funds)
This County Regulatory Agreement and Declaration of Restrictive Covenants (the
"County Regulatory Agreement") is dated November 1, 2018 and is between the County of
Contra Costa, a political subdivision of the State of California (the "County"), and Antioch
Recap, 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. Borrower intends to purchase that certain real property located at 31945 and 1949
Cavallo Road in the City of Antioch, County of Contra Costa, State of California, as more
particularly described in Exhibit A (the "Property") from Pinecrest Affordable Housing, L.P., a
California limited partnership (the "Seller "). Borrower intends to rehabilitate the existing
twenty-four (24) housing units located on the Property for rental to extremely low, very low and
low income households along with one (1) manager's unit. Together the Property and its
improvements are the "Development ".
D. Pursuant to a Development Loan Agreement of even date herewith between the
County and Borrower (the "Loan Agreement"), the County is lending Borrower Three Million
Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962) (the "Combined
County Loan") to assist in the rehabilitation of the Development, and the concurrent
rehabilitation of twenty-four (24) units of affordable housing located at 35, 45, 101, 103, 105 and
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107 W. 20th Street, and 104 and 106 W. 20th Street in the City of Antioch (the "Terrace Glen
Property"). The Development and the Terrace Glen Property are collectively referred to as the
"Antioch Scattered Site Development." The Combined County Loan includes restructured
existing financing associated with the Antioch Scattered Site Development, as well as new
financing, to assist in the rehabilitation of the Antioch Scattered Site Development.
E. The Combined County Loan includes: (i) Six Hundred Twenty-Five Thousand
Dollars ($625,000) of HOME Funds previously loaned to the Seller and restructured pursuant to
the Loan Agreement; (ii) Eight Hundred Fifty-Six Thousand Dollars ($856,000) of HOME
Funds previously loaned to the prior owner of the Terrace Glen Property and restructured
pursuant to the Loan Agreement; and (iii) One Million Three Hundred Thousand Dollars
($1,300,000) in HOME Funds to be loaned to Borrower by the County, concurrent with the
execution of this HOME Regulatory Agreement.
F. In addition to the Loan Agreement, the Combined County Loan is evidenced by
the following documents: (i) a deed of trust with assignment of rents, security agreement, and
fixture filing of even date herewith, among Borrower, as trustor, North American Title
Company, as trustee, and the County, as beneficiary; (ii) an intercreditor agreement of even date
herewith among the City of Antioch, the County, and Borrower; (iii) three (3) promissory notes
executed by Borrower of even date herewith, for the existing loan portions of the Combined
County Loan assumed by Borrower, and the newly funded portion of the Combined County
Loan; and (iv) four (4) regulatory agreements associated with the Development and the Terrace
Glen Property, including this County Regulatory Agreement and the HOME Regulatory
Agreement, executed by Borrower of even date herewith, (collectively, the "Loan Documents").
The Loan Documents are described in more detail in the Loan Agreement.
G. The County has the authority to lend the Combined County 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 the HOME Funds pursuant to 24 C.F.R. 92.205.
H. The County has agreed to make the Combined County 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 Regulatory Agreement, and in the related
documents evidencing the Combined County Loan. Fourteen (14) of the Units are restricted by
the County pursuant to this County Regulatory Agreement.
I. Three (3) of the Units are restricted by the County pursuant the HOME
Regulatory Agreement (the "HOME-Assisted Units "). This County Regulatory Agreement
supersedes in its entirety the Regulatory Agreement dated September 18, 2000, recorded against
the Property on September 21, 2000, as Instrument No.2000-204510.
J. As it applies to the County-Assisted Units this County Regulatory Agreement will
be in effect for the Term. The HOME Regulatory Agreement as it applies to the HOME-Assisted
Units will be in effect for the HOME Term. Pursuant to Section 6.16 below, compliance with
the terms of the HOME Regulatory Agreement will be deemed compliance with this County
Regulatory Agreement during the HOME Term with respect to the HOME-Assisted Units.
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K. In consideration of receipt of the Combined County 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) "Accessibility Requirements" has the meaning set forth in Section 2.1(e).
(b) "Actual Household Size" means the actual number of persons in the
applicable household.
(c) "Adjusted Income" means with respect to the Tenant of each Unit, the
Tenant’s total anticipated annual income as defined in 24 CFR 5.609 and as calculated pursuant
to 24 CFR 5.611.
(d) "Antioch Scattered Site Development" has the meaning set forth in
Paragraph D of the Recitals.
(e) "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),
used to calculate Rent.
(f) "City" means the City of Antioch, California, a municipal corporation.
(g) "Combined County Loan" has the meaning set forth in Paragraph D of the
Recitals.
(h) "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.
(i) "County-Assisted Units" means the fourteen (14) Units to be rehabilitated
on the Property that are restricted to occupancy by Extremely Low Income Households, Very
Low Income Households, and Forty Percent Income Households in compliance with Section
2.1below.
(j) "County Regulatory Agreement" has the meaning set forth in the first
paragraph of this County Regulatory Agreement.
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(k) "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,
North American Title Company, as trustee, and the County, as beneficiary, that encumbers the
Property to secure repayment of the Combined County Loan and Borrower's performance of the
Loan Documents.
(l) "Development" has the meaning set forth in Paragraph C of the Recitals.
(m) "Development Regulatory Documents" has the meaning set forth in
Section 4.2(a).
(n) "Existing Tenants" means the tenants that occupy the County-Assisted
Units on the date of Borrower's acquisition of the Property.
(o) "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.
(p) "Extremely Low Income Rent" means the maximum allowable rent for a
Extremely Income Unit pursuant to Section 2.2(a) below.
(q) "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.
(r) "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.
(s) "Forty Percent Income Household" means a household with an Adjusted
Income that does not exceed forty percent (4 0%) of Median Income, adjusted for Actual
Household Size.
(t) "Forty Percent Income Rent" means the maximum allowable rent for a
Forty Percent Income Unit pursuant to Section 2.2(b) below.
(u) "Forty Percent Income Units" means the Units which, pursuant to Section
2.1(b) below, are required to be occupied by Forty Percent Income Households.
(v) "HOME" has the meaning set forth in Paragraph B of the Recitals.
(w) "HOME-Assisted Units" has the meaning set forth in Paragraph I of the
Recitals.
(x) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals.
(y) "HOME 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 Combined County Loan, to be recorded
against the Property concurrently herewith.
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(z) "HOME Term" means the term of the HOME Regulatory Agreement
which commences as of the date of the HOME Regulatory Agreement, and unless sooner
terminated pursuant to the terms of the HOME Regulatory Agreement, expires on the sixteenth
(16th) 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 eighteenth (18th)
anniversary of the HOME Regulatory Agreement.
(aa) "HUD" has the meaning set forth in Paragraph B of the Recitals.
(bb) "Investor Limited Partner" means, RSEP Holding, LLC, a Delaware
limited liability company.
(cc) "Loan Agreement" has the meaning set forth in Paragraph D of the
Recitals.
(dd) "Lo an Documents" has the meaning set forth in Paragraph F of the
Recitals.
(ee) "Low Income Household" means a Tenant with an Adjusted Income that
does not exceed eighty percent (80%) of Median Income, adjusted for Actual Household Size.
(ff) "Maintenance Standards" has the meaning set forth in Section 5.6 (a).
(gg) "Marketing Plan" has the meaning set forth in Section 4.3(a).
(hh) "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.
(ii) "Operating Budget" has the meaning set forth in Section 2.6(a).
(jj) "Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated on or about November 1, 2018, that governs the operation and
organization of Borrower as a California limited partnership.
(kk) "Property" has the meaning set forth in Paragraph C of the Recitals.
(ll) "RCD" means Resources for Community Development, a California
nonprofit public benefit corporation.
(mm) "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,
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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.
(nn) "Rental Subsidy" has the meaning set forth in Section 2.6(a).
(oo) "Seller" has the meaning set forth in Paragraph C of the Recitals.
(pp) "Sixty Percent Income Rent" means a monthly Rent amount not exceeding
one-twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of Median Income, adjusted for
Assumed Household Size.
(qq) "Subsidy Units" has the meaning set forth in Section 2.6(a).
(rr) "Tenant" means the tenant household that occupies a Unit in the
Development.
(ss) "Tenant Selection Plan" has the meaning set forth in Section 4.3(b).
(tt) "Term" means the term of this County Regulatory Agreement which
commences as of 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.
(uu) "Terrace Glen Property" has the meaning set forth in Paragraph D of the
Recitals.
(vv) "Transfer" has the meaning set forth in Section 6.1.
(ww) "Unit(s)" means one (1) or more of the units in the Development.
(xx) "Very Low Income Household" means a household with an Adjusted
Income that does not exceed fifty percent (50%) of Median Income, adjusted for Actual
Household Size.
(yy) "Very Low Income Rent" means the maximum allowable rent for a Very
Low Income Unit pursuant to Section 2.2(c) below.
(zz) "Very Low Income Units" means the Units which, pursuant to Section
2.1(c) below, are required to be occupied by Very Low Income Households.
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ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a) Extremely Low Income Units. During the Term Borrower shall cause
three (3) Units to be rented to and occupied by or, if vacant, available for occupancy by,
Extremely Low Income Households.
(b) Forty Percent Income Units. During the Term Borrower shall cause five
(5) Units to be rented to and occupied by or, if vacant, available for occupancy by Forty Percent
Income Households.
(c) Very Low Income Units. During the Term Borrower shall cause six (6)
Units to be rented to and occupied by or, if vacant, available for occupancy by Very Low Income
Households. This includes the three (3) HOME-Assisted Units that are regulated by the HOME
Regulatory Agreement during the HOME Term and are regulated by this County Regulatory
Agreement after the HOME Term.
(d) 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 must be of the bedroom size set forth in the following chart:
Extremely Low
Income Units
Forty Percent
Income Units
Very Low Income
Units*
One-Bd. Units 3 5 6
(includes 3 HOME-
Assisted)
*Note: the six (6) Very Loan Income Units listed above includes three (3) HOME-Assisted
Units that are regulated by the HOME Regulatory Agreement during the HOME Term and
are regulated by this County Regulatory Agreement after the HOME Term.
(e) Disabled Persons Occupancy.
(1) Borrower shall cause the Development to be operated at all times
in compliance with all applicable federal, state, and local disabled persons accessibility
requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the
California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of
1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities
Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations,
which relate to disabled persons access (collectively, the "Accessibility Requirements").
(2) Borrower shall indemnify, protect, hold harmless and defend (with
counsel reasonably satisfactory to the County) the County, and its board members, officers and
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employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens
arising out of Borrower's failure to comply with the Accessibility Requirements. This obligation
to indemnify survives termination of this HOME Regulatory Agreement, repayment of the
Combined County Loan and the reconveyance of the Deed of Trust.
(f) Existing Tenants. Borrower shall provide the County a written report of
the income and rent amount of all Existing Tenants within thirty (30) days of acquisition of the
Development. Concurrent with providing the report to the County, Borrower shall also provide a
proposal regarding designation of Unit s as Extremely Low Income Units, Very Low Income
Units, and Forty Percent Income Units. Borrower shall not implement any rent increases for
Existing Tenants upon acquisition of the Development without the approval of the County. Any
Existing Tenant lawfully residing in the Development as of the date of this Agreement is entitled
to remain a resident of the Development if such Tenant does not meet the income and other
eligibility criteria of this Section 2.1. If and when such non-qualifying Existing Tenant
voluntarily vacates the Unit, Borrower shall rent such Unit to an Extremely Low Income
Household, Very Low Income Household, or Forty Percent Income Household, as necessary to
meet the provisions of this Section.
2.2 Allowable Rent.
(a) Extremely Low Income Rent. Subject to the provisions of Section 2.5
below, the Rent paid by Tenants of Extremely Low Income Units, may not exceed one-twelfth
(1/12) of thirty percent (30%) of thirty percent (30%) of Median Income, adjusted for Assumed
Household Size.
(b) Forty Percent Income Rent. Subject to the provisions of Section 2.5
below, the Rent paid by Tenants of Forty Percent Income Units may not exceed one-twelfth
(1/12) of thirty percent (30%) of Forty Percent (40%) of Median Income, adjusted for Assumed
Household Size.
(c) Very Low Income Rent. Subject to the provisions of Section 2.5 below,
the Rent paid by Tenants of Very Low Income Units may not exceed one-twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of Median Income, adjusted for Assumed Household Size.
(d) 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 Compliance with TCAC Requirements. During the term of any regulatory
agreement associated with the provision of low income housing tax credits by the California Tax
Credit Allocation Committee ("TCAC") and recorded against the Property (the "TCAC
Regulatory Agreement"), Borrower may use the occupancy standards, occupancy assumptions,
income limits, and rent levels that are permitted by TCAC in the TCAC Regulatory Agreement,
in place of such requirements imposed by this County Regulatory Agreement. This does not
apply to the HOME-Assisted Units which are regulated by the HOME Regulatory Agreement
during the HOME Term.
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2.4 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, provided that the
County may approve a request from Borrower for a rent increase greater than 5%, with a written
explanation for the request from Borrower. Bo rrower 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.
2.5 Increased Income of Tenants.
(a) Increased Income of an Extremely Low Income Household to Above
Extremely Low Income but Below the Very Low Income Limit. Subject to Section 2.4 above, 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 to above the qualifying limit
for an Extremely Low Income Household but below the qualifying income for a Very 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 Extremely Low Income Rent, 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) Increased Income of an Extremely Low Income Household to at or Above
Very Low Income Limit but below Low Income Limit. Subject to Section 2.4 above, 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 to at or above the qualifying limit for a
Very 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 may be increased
to the Very 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 Extremely Low Income Rent, or re-designate another comparable Unit in the
Development with an Extremely Low Income Household an Extremely Low Income Unit, to
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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.
(c) Increased Income of a Forty Percent Income Household to Above Forty
Percent Income but Below the Very Low Income Limit. Subject to Section 2.4 above, if, upon
the annual certification of the income of a Tenant of a Forty Percent Income Unit, Borrower
determines that the income of the Tenant has increased to above the qualifying limit for a Forty
Percent Income Household but below the qualifying income for a Very Low Income Household,
the Tenant may continue to occupy the Unit and the Tenant's Rent will remain at the Forty
Percent Income Rent. Borrower shall then rent the next available Unit to a Forty Percent Income
Household to comply with the requirements of Section 2.1(b) above, at a Rent not exceeding the
Forty Percent Income Rent, or re-designate another comparable Unit in the Development with an
Forty Percent Income Household a Forty Percent Income Unit, to comply with the requirements
of Section 2.1(b) above. Upon renting the next available Unit in accordance with Section 2.1(b)
or re-designating another Unit in the Development as a Forty Percent Income Unit, the Unit with
the over-income Tenant will no longer be considered a County-Assisted Unit.
(d) Increased Income of a Forty Percent Income Household to at or Above
Very Low Income Limit but below Low Income Limit. Subject to Section 2.4 above, if, upon the
annual certification of the income of a Tenant of a Forty Percent Income Unit, Borrower
determines that the income of the Tenant has increased to at or above the qualifying limit for a
Very 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 may be increased
to the Very Low Income Rent. Borrower shall then rent the next available Unit to a Forty
Percent Income Household to comply with the requirements of Section 2.1(b) above, at a Rent
not exceeding the Forty Percent Income Rent, or re-designate another comparable Unit in the
Development with a Forty Percent Income Household n Forty Percent Income Unit, to comply
with the requirements of Section 2.1(b) above. Upon renting the next available Unit in
accordance with Section 2.1(b) or re-designating another Unit in the Development as a Forty
Percent Income Unit, the Unit with the over-income Tenant will no longer be considered a
County-Assisted Unit.
(e) Increased Income of a Very Low Income Household to above Very Low
Income but below Low Income Limit. If, upon the annual certification of the income of a Tenant
of a Very Low Income Unit, Borrower determines that the income of the Tenant has increased
above the qualifying limit for a Very 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 Very Low Income Rent. Borrower shall then rent the next
available Unit to a Very Low Income Household to comply with the requirements of Section
2.1(c) above, at a Rent not exceeding the Very Low Income Rent, or re-designate another
comparable Unit in the Development with a Very Low Income Household a Very Low Income
Unit, to comply with the requirements of Section 2.1(c) above. Upon renting the next available
Unit in accordance with Section 2.1(c) or re-designating another Unit in the Development as a
Very Low Income Unit, the Unit with the over-income Tenant will no longer be considered a
County Assisted Unit.
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(f) 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, Very Low Income Household, or Forty Percent Income Household as applicable, 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, Very Low Income Household, or Forty Percent Income Household, as
applicable, 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(f), the Unit with
the over-income Tenant will no longer be considered a County Assisted Unit.
(g) 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.
2.6 Loss of Subsidy.
(a) It is anticipated that certain Units in the Development (the "Subsidy
Units") will receive Project-Based Section 8 or other rental subsidy payments (the "Rental
Subsidy") throughout the Term, as reflected in the Approved Development Budget.
Notwithstanding Section 2.4(b), if any change in federal law occurs, or any action (or inaction)
by Congress or any federal or State agency occurs, which results in a reduction, termination or
nonrenewal of the Rental Subsidy through no fault of the Borrower, such that the Rental Subsidy
shown on the Approved Development Budget is no longer available, Borrower may increase the
Rent on one or more of the County-Assisted Units that overlap with a Subsidy Unit, to the Sixty
Percent Income Rent, subject to the following requirements:
(1) At the time Borrower requests an increase in the Rent, Borrower
shall provide the County with an operating budget for the Development for the County's
approval pursuant to Section 4.4 of the Loan Agreement, showing the impact of the loss or
reduction of the Rental Subsidy (the "Operating Budget");
(2) The number of County-Assisted Units subject to the Rent increase
and the level of rent increase may not be greater than the amount required to ensure that the
Development generates sufficient income to cover its operating costs and debt service as shown
on the Operating Budget, and as is necessary to maintain the financial stability of the
Development; and
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(3) Any such Rent increase must be pursuant to a transition plan
approved by the County, consistent with remedial measures set forth in California Code of
Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or successor regulation
applicable to California's Federal and State Low Income Housing Tax Credit Program.
(b) Borrower shall use good faith efforts to obtain alternative sources of rental
subsidies and shall provide the County with annual progress reports on efforts to obtain
alternative sources of rental subsidies that would allow the rents on the County-Assisted Units to
be reduced back to the Rents set out in Section 2.2. Upon receipt of any alternative rental
subsidies, Borrower shall reduce the rents on the County-Assisted Units back to the Rents set out
in Section 2.2, to the extent that the alternative rental subsidies provide sufficient income to
cover the operating costs and debt service of the Development as shown on the Operating
Budget.
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
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
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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 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 Regulatory Agreement) for a
period of not less than five (5) years after the ir 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 Combined County 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 Combined County 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. 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 Combined County 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
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(v) Records demonstrating compliance with the marketing, tenant
selection, 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 Regulatory Requirements.
(a) 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; and (iii) any other regulatory
requirements imposed on the Development including but not limited to regulatory agreements
associated with the Low Income Housing Tax Credits provided by the California Tax Credit
Allocation Committee, and rental subsidies provided to the Development (the "Development
Regulatory Documents ").
(b) Borrower shall promptly notify the County in writing of the existence of
any default under any Development Regulatory Documents, and provide the County copies of
any such notice of default.
4.3 Marketing Plan; Tenant Selection Plan.
(a) Marketing Plan.
(1) No later than six (6) months prior to the date rehabilitation 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
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three (3) months prior to the date rehabilitation 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 rehabilitation 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 rehabilitation 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 rehabilitation 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
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, Very
Low Income Household, or Forty Percent 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; and
(3) include a provision that requires a Tenant who is residing in a Unit
required to be accessible pursuant to Section 3.9(b) of the Loan Agreement, and who is not in
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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 Term, Borrower shall comply with the Marking Plan and
Tenant Selection Plan approved by the County.
(c) Any termination of a lease or refusal to renew a lease for a County
Assisted Unit within the Development must be preceded by not less than sixty (60) days written
notice to the Tenant by Borrower specifying the grounds for the action.
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 management representative shall reside at the Property.
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 the John Stewart
Company 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 fort h
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
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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 6.6 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: (i) in decent, safe and
sanitary condition, (ii) in good condition and repair, and (iii) free of all health and safety defects.
Such maintenance must be in accordance with (i) 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) any other standards provided by the County (collectively, the "Maintenance
Standards"). Borrower shall correct any life-threatening maintenance deficiencies 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
rehabilitation 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.
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(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 Transfers.
(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 the Loan
Documents; 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 this County Regulatory
Agreement. The County 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 6.1, no Transfer is permitted
without the prior written consent of the County, which the County may withhold in its sole
discretion. The Combined County 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 the admission of the Investor Limited Partner
and Red Stone Equity Manager, LLC, a Delaware limited liability company, to Borrower as
limited partners. 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.
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(d) The County hereby approves a Transfer of the Property from Borrower to
RCD, or a non-profit affiliate of RCD, and an assumption of the Combined County Loan by such
transferee at or prior to 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, (ii) the assignment and assumption agreement evidencing such Transfer requires the
transferee to expressly assume the obligations of Borrower under the Loan Documents, and (iii)
the County is provided executed copies of all documents evidencing the Transfer.
(e) The County hereby approves the purchase of the Investor Limited Partner
interest by RCD, or a non-profit affiliate of RCD at or prior to 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 County is provided
executed copies of all documents evidencing the Transfer.
(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 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, 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.
(g) The County hereby approves the grant of the security interests in the
Development for Approved Financing as such term is defined in Section 1.1(f) of the Loan
Agreement.
6.2 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
Re gulatory Agreement and the HOME 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
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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.
6.3 Application of Provisions. The provisions of this County Regulatory Agreement
apply to the Property for the entire Term even if the Combined County 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 Combined
County Loan on the condition, and in consideration of, this provision, and would not do so
otherwise.
6.4 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
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.
6.5 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.
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6.6 Enforcement by the County.
(a) 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, the County may enforce this County Regulatory Agreement
by any or all of the following actions, or any other remedy provided by law:
(1) Calling the Combined County Loan. The County may declare a
default under the Loan Documents, accelerate the indebtedness evidenced by the Loan
Documents, and proceed with foreclosure under the Deed of Trust.
(2) 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.
(3) Remedies Provided Under Loan Documents. The County may
exercise any other remedy provided under the Loan Documents.
(b) The County shall provide notice of a default to the Investor Limited
Partner and any limited partner of Borrower who has requested written notice from the County in
the manner set forth in Section 6.5 of the Loan Agreement.
6.7 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 statut e.
6.8 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.
6.9 Governing Law. This County Regulatory Agreement is governed by the laws of
the State of California.
6.10 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.
6.11 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.
6.12 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:
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County: County of Contra Costa
Department of Conservation and Development
30 Muir Road
Martinez, CA 94553
Attn: Assistant Deputy Director
Borrower: Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
Investor Limited
Partner: RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1640
Cleveland, OH 44114
Attention: General Counsel
Such addresses may be changed by notice to the other party given in the same manner as
provided above.
6.13 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.
6.14 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.
6.15 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the
Property, this County Regulatory Agreement will revive according to its original terms if, during
the 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.
6.16 County Regulatory Agreement. The County and Borrower are entering into this
County Regulatory Agreement concurrently with the HOME Regulatory Agreement. This
County Regulatory Agreement applies to all the County-Assisted Units including the HOME-
Assisted Units. The HOME Regulatory Agreement applies only to the HOME-Assisted Units
and includes HOME requirements applicable to the use of HOME Funds. The HOME
Regulatory Agreement will be in effect for the HOME Term. Compliance with the terms of the
HOME Regulatory Agreement will be deemed compliance with this County Regulatory
Agreement during the HOME Term as it applies to the HOME-Assisted Units. In the event of a
conflict between the HOME Regulatory Agreement and this County Regulatory Agreement
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during the HOME Term as it applies to the HOME-Assisted Units, the terms of the HOME
Regulatory Agreement will prevail.
[remainder of page intentionally left blank]
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Signature page
Pinecrest County Regulatory Agreement
863\107\2383901.2
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:
Antioch Recap, L.P., a California limited
partnership
By: RCD GP III, LLC, a California limited
liability company, its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation, its sole
member/manager
By:_______________________
Daniel Sawislak, Executive
Director
October 16, 2018 BOS Minutes 949
863\107\2383901.2
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: ______________________________
Name: Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary Public,
personally appeared ______________________________________, 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: ______________________________
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.
October 16, 2018 BOS Minutes 951
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863\107\2383901.2
EXHIBIT A
Legal Description
(Pinecrest)
The land is situated in the State of California, County of Contra Costa, and is described as
follows:
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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 and 27388.1
__________________________________________________________________________
COUNTY REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Antioch Scattered Site Renovation
(Terrace Glen Existing Loan Funds)
This County Regulatory Agreement and Declaration of Restrictive Covenants (the
"County Regulatory Agreement") is dated November 1, 2018 and is between the County of
Contra Costa, a political subdivision of the State of California (the "County"), and Antioch
Recap, 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. Borrower intends to purchase that certain real property located at 35, 45, 101,
103, 105 and 107 W. 20th Street, and 104 and 106 W. 20th Street in the City of Antioch, County
of Contra Costa, State of California, as more particularly described in Exhibit A (the "Property")
from Resources for Community Development, a California nonprofit public benefit corporation,
(the "Seller" or "RCD"). Borrower intends to rehabilitate the existing thirty-two (32) housing
units located on the Property for rental to extremely low, very low and low income households
along with one (1) manager's unit. Together the Property and its improvements are the
"Development ".
D. Pursuant to a Development Loan Agreement of even date herewith between the
County and Borrower (the "Loan Agreement"), the County is lending Borrower Three Million
Six Hundred Seventy Thousand Nine Hundred Sixty-Two Dollars ($3,670,962) (the "Combined
County Loan") to assist in the rehabilitation of the Development, and the concurrent
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rehabilitation of twenty-four (24) units of affordable housing located at 1945 and 1949 Cavallo
Road in the City of Antioch (the "Pinecrest Property"). The Development and the Pinecrest
Property are collectively referred to as the "Antioch Scattered Site Development." The
Combined County Loan includes restructured existing financing associated with the Antioch
Scattered Site Development, as well as new financing, to assist in the rehabilitation of the
Antioch Scattered Site Development.
E. The Combined County Loan includes: (i) Eight Hundred Fifty-Six Thousand
Dollars ($856,000) of HOME Funds previously loaned to the Seller and restructured pursuant to
the Loan Agreement; (ii) Six Hundred Twenty-Five Thousand Dollars ($625,000) of HOME
Funds previously loaned to the owner of the Pinecrest Property and restructured pursuant to the
Loan Agreement; and (iii) One Million Three Hundred Thousand Dollars ($1,300,000) in HOME
Funds to be loaned to Borrower by the County, concurrent with the execution of this HOME
Regulatory Agreement.
F. In addition to the Loan Agreement, the Combined County Loan is evidenced by
the following documents: (i) a deed of trust with assignment of rents, security agreement, and
fixture filing of even date herewith, among Borrower, as trustor, North American Title
Company, as trustee, and the County, as beneficiary; (ii) an intercreditor agreement of even date
herewith among the City of Antioch, the County, and Borrower; (iii) three (3) promissory notes
executed by Borrower of even date herewith, for the existing loan portions of the Combined
County Loan assumed by Borrower, and the newly funded portion of the Combined County
Loan; and (iv) four (4) regulatory agreements associated with the Development and the Pinecrest
Property, including this County Regulatory Agreement and the HOME Regulatory Agreement,
executed by Borrower of even date herewith, (collectively, the "Loan Documents"). The Loan
Documents are described in more detail in the Loan Agreement.
G. The County has the authority to lend the Combined County 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 the HOME Funds pursuant to 24 C.F.R. 92.205.
H. The County has agreed to make the Combined County 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 Regulatory Agreement, and in the related
documents evidencing the Combined County Loan. Twenty-one (21) of the Units are restricted
by the County pursuant to this County Regulatory Agreement.
I. Five (5) of the Units are restricted by the County pursuant the HOME Regulatory
Agreement (the "HOME-Assisted Units"). This County Regulatory Agreement supersedes in its
entirety the Regulatory Agreement dated November 4, 1996, recorded against the Property on
November 6, 1996, as Instrument No. 96-210492, as amended by a First Amendment to
Regulatory Agreement dated August 5, 1998 and recorded against the Property on August 25,
1998, as Instrument No. 98-202840.
J. As it applies to the County-Assisted Units this County Regulatory Agreement will
be in effect for the Term. The HOME Regulatory Agreement as it applies to the HOME-Assisted
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Units will be in effect for the HOME Term. Pursuant to Section 6.16 below, compliance with
the terms of the HOME Regulatory Agreement will be deemed compliance with this County
Regulatory Agreement during the HOME Term with respect to the HOME-Assisted Units.
K. In consideration of receipt of the Combined County 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) "Accessibility Requirements" has the meaning set forth in Section 2.1(e).
(b) "Actual Household Size" means the actual number of persons in the
applicable household.
(c) "Adjusted Income" means with respect to the Tenant of each Unit, the
Tenant’s total anticipated annual income as defined in 24 CFR 5.609 and as calculated pursuant
to 24 CFR 5.611.
(d) "Antioch Scattered Site Development" has the meaning set forth in
Paragraph D of the Recitals.
(e) "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),
used to calculate Rent.
(f) "City" means the City of Antioch, California, a municipal corporation.
(g) "Combined County Loan" has the meaning set forth in Paragraph D of the
Recitals.
(h) "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.
(i) "County-Assisted Units" means the twenty-one (21) Units to be
rehabilitated on the Property that are restricted to occupancy by Extremely Low Income
Households, Very Low Income Households, and Sixty Percent Income Households in
compliance with Section 2.1below.
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(j) "County Regulatory Agreement" has the meaning set forth in the first
paragraph of this County Regulatory Agreement.
(k) "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,
North American Title Company, as trustee, and the County, as beneficiary, that encumbers the
Property to secure repayment of the Combined County Loan and Borrower's performance of the
Loan Documents.
(l) "Development" has the meaning set forth in Paragraph C of the Recitals.
(m) "Development Regulatory Documents" has the meaning set forth in
Section 4.2(a).
(n) "Existing Tenants" means the tenants that occupy the County-Assisted
Units on the date of Borrower's acquisition of the Property.
(o) "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.
(p) "Extremely Low Income Rent" means the maximum allowable rent for a
Extremely Income Unit pursuant to Section 2.2(a) below.
(q) "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.
(r) "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.
(s) "HOME" has the meaning set forth in Paragraph B of the Recitals.
(t) "HOME-Assisted Units" has the meaning set forth in Paragraph I of the
Recitals.
(u) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals.
(v) "HOME 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 Combined County Loan, to be recorded
against the Property concurrently herewith.
(w) "HOME Term" means the term of the HOME Regulatory Agreement
which commences as of the date of the HOME Regulatory Agreement, and unless sooner
terminated pursuant to the terms of the HO ME Regulatory Agreement, expires on the sixteenth
(16th) 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 eighteenth (18th)
anniversary of the HOME Regulatory Agreement.
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(x) "HUD" has the meaning set forth in Paragraph B of the Recitals.
(y) "Investor Limited Partner" means, RSEP Holding, LLC, a Delaware
limited liability company.
(z) "Loan Agreement" has the meaning set forth in Paragraph D of the
Recitals.
(aa) "Loan Documents" has the meaning set forth in Paragraph F of the
Recitals.
(bb) "Low Income Household" means a Tenant with an Adjusted Income that
does not exceed eighty percent (80%) of Median Income, adjusted for Actual Household Size.
(cc) "Maintenance Standards" has the meaning set forth in Section 5.6 (a).
(dd) "Marketing Plan" has the meaning set forth in Section 4.3(a).
(ee) "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.
(ff) "Operating Budget" has the meaning set forth in Section 2.6(a).
(gg) "Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership, dated on or about November 1, 2018, that governs the operation and
organization of Borrower as a California limited partnership.
(hh) "Pinecrest Property" has the meaning set forth in Paragraph D of the
Recitals.
(ii) "Property" has the meaning set forth in Paragraph C of the Recitals.
(jj) "RCD" has the meaning set forth in Paragraph C of the Recitals.
(kk) "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
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.
(ll) "Rental Subsidy" has the meaning set forth in Section 2.6(a).
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(mm) "Seller" has the meaning set forth in Paragraph C of the Recitals.
(nn) "Sixty Percent Income Household" means a household with an Adjusted
Income that does not exceed sixty percent (60%) of Median Income, adjusted for Actual
Household Size.
(oo) "Sixty Percent Income Rent" means the maximum allowable rent for a
Sixty Percent Income Unit pursuant to Section 2.2(c) below.
(pp) "Sixty Percent Income Units" means the Units which, pursuant to Section
2.1(c) below, are required to be occupied by Sixty Percent Income Households.
(qq) "Subsidy Units" has the meaning set forth in Section 2.6(a).
(rr) "Tenant" means the tenant household that occupies a Unit in the
Development.
(ss) "Tenant Selection Plan" has the meaning set forth in Section 4.3(b).
(tt) "Term" means the term of this County Regulatory Agreement which
commences as of 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.
(uu) "Transfer" has the meaning set forth in Section 6.1.
(vv) "Unit(s)" means one (1) or more of the units in the Development.
(ww) "Very Low Income Household" means a household with an Adjusted
Income that does not exceed fifty percent (50%) of Median Income, adjusted for Actual
Household Size.
(xx) "Very Low Income Rent" means the maximum allowable rent for a Very
Low Income Unit pursuant to Section 2.2(b) below.
(yy) "Very Low Income Units" means the Units which, pursuant to Section
2.1(b) below, are required to be occupied by Very Low Income Households.
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ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a) Extremely Low Income Units. During the Term Borrower shall cause four
(4) Units to be rented to and occupied by or, if vacant, available for occupancy by, Extremely
Low Income Households.
(b) Very Low Income Units. During the Term Borrower shall cause thirteen
(13) Units to be rented to and occupied by or, if vacant, available for occupancy by Very Low
Income Households. This includes the five (5) HOME-Assisted Units that are regulated by the
HOME Regulatory Agreement during the HOME Term and are regulated by this County
Regulatory Agreement after the HOME Term.
(c) Sixty Percent Income Units. During the Term Borrower shall cause four
(4) Units to be rented to and occupied by or, if vacant, available for occupancy by Sixty Percent
Income Households.
(d) 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 must be of the bedroom size set forth in the following chart:
Extremely Low
Income Units
Very Low Income
Units*
Sixty Percent Income
Units
One-Bd. Units 4
Two-Bd. Units 2 6
(includes 4
HOME-Assisted)
4
Three-Bd. Units 2 3
(includes 1
HOME-Assisted)
Total 4 13 4
*Note: the thirteen (13) Very Loan Income Units listed above includes five (5) HOME-
Assisted Units that are regulated by the HOME Regulatory Agreement during the HOME
Term and are regulated by this County Regulatory Agreement after the HOME Term.
(e) Disabled Persons Occupancy.
(1) Borrower shall cause the Development to be operated at all times
in compliance with all applicable federal, state, and local disabled persons accessibility
requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the
California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of
1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities
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Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations,
which relate to disabled persons access (collectively, the "Accessibility Requirements").
(2) 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 the Accessibility Requirements. This obligation
to indemnify survives termination of this HOME Regulatory Agreement, repayment of the
Combined County Loan and the reconveyance of the Deed of Trust.
(f) Existing Tenants. Borrower shall provide the County a written report of
the income and rent amount of all Existing Tenants within thirty (30) days of acquisition of the
Development. Concurrent with providing the report to the County, Borrower shall also provide a
proposal regarding designation of Unit s as Extremely Low Income Units, Very Low Income
Units, and Sixty Percent Income Units. Borrower shall not implement any rent increases for
Existing Tenants upon acquisition of the Development without the approval of the County. Any
Existing Tenant lawfully residing in the Development as of the date of this Agreement is entitled
to remain a resident of the Development if such Tenant does not meet the income and other
eligibility criteria of this Section 2.1. If and when such non-qualifying Existing Tenant
voluntarily vacates the Unit, Borrower shall rent such Unit to an Extremely Low Income
Household, Very Low Income Household, or Sixty Percent Income Household, as necessary to
meet the provisions of this Section.
2.2 Allowable Rent.
(a) Extremely Low Income Rent. Subject to the provisions of Section 2.5
below, the Rent paid by Tenants of Extremely Low Income Units, may not exceed one-twelfth
(1/12) of thirty percent (30%) of thirty percent (30%) of Median Income, adjusted for Assumed
Household Size.
(b) Very Low Income Rent. Subject to the provisions of Section 2.5 below,
the Rent paid by Tenants of Very Low Income Units may not exceed one-twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of Median Income, adjusted for Assumed Household Size.
(c) Sixty Percent Income Rent. Subject to the provisions of Section 2.5
below, the Rent paid by Tenants of Sixty Percent Income Units ma y not exceed one-twelfth
(1/12) of thirty percent (30%) of sixty percent (60%) of Median Income, adjusted for Assumed
Household Size.
(d) 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 Compliance with TCAC Requirements. During the term of any regulatory
agreement associated with the provision of low income housing tax credits by the California Tax
Credit Allocation Committee ("TCAC") and recorded against the Property (the "TCAC
Regulatory Agreement"), Borrower may use the occupancy standards, occupancy assumptions,
income limits, and rent levels that are permitted by TCAC in the TCAC Regulatory Agreement,
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in place of such requirements imposed by this County Regulatory Agreement. This does not
apply to the HOME-Assisted Units which are regulated by the HOME Regulatory Agreement
during the HOME Term.
2.4 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, provided that the
County may approve a request from Borrower for a rent increase greater than 5%, with a written
explanation for the request from Borrower. Bo rrower 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.
2.5 Increased Income of Tenants.
(a) Increased Income of an Extremely Low Income Household to Above
Extremely Low Income but Below the Very Low Income Limit. Subject to Section 2.4 above, 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 to above the qualifying limit
for an Extremely Low Income Household but below the qualifying income for a Very 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 Extremely Low Income Rent, 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) Increased Income of an Extremely Low Income Household to at or Above
Very Low Income Limit but below Low Income Limit. Subject to Section 2.4 above, 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 to at or above the qualifying limit for a
Very 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 may be increased
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to the Very 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 Extremely Low Income Rent, 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.
(c) Increased Income of a Very Low Income Household to above Very Low
Income but below Low Income Limit. If, upon the annual certification of the income of a Tenant
of a Very Low Income Unit, Borrower determines that the income of the Tenant has increased
above the qualifying limit for a Very 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 Very Low Income Rent. Borrower shall then rent the next
available Unit to a Very Low Income Household to comply with the requirements of Section
2.1(b) above, at a Rent not exceeding the Very Low Income Rent, or re-designate another
comparable Unit in the Development with a Very Low Income Household a Very Low Income
Unit, to comply with the requirements of Section 2.1(b) above. Upon renting the next available
Unit in accordance with Section 2.1(b) or re-designating another Unit in the Development as a
Very Low Income Unit, the Unit with the over-income Tenant will no longer be considered a
County Assisted Unit.
(d) Increased Income of a Sixty Percent Income Household to below Low
Income Limit. If, upon the annual certification of the income of a Tenant of a Sixty Percent
Income Unit, Borrower determines that the income of the Tenant has increased above the
qualifying limit for a Sixty Percent 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 Sixty Percent Income Rent. Borrower shall then rent the next available Unit to a
Sixty Percent Income Household to comply with the requirements of Section 2.1(c) above, at a
Rent not exceeding the Sixty Percent Income Rent, or re-designate another comparable Unit in
the Development with a Sixty Percent Income Household a Sixty Percent Income Unit, to
comply with the requirements of Section 2.1(c) above. Upon renting the next available Unit in
accordance with Section 2.1(c) or re-designating another Unit in the Development as a Sixty
Percent Income Unit, the Unit with the over-income Tenant will no longer be considered a
County Assisted Unit.
(e) 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
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Household, Very Low Income Household, or Sixty Percent Income Household as applicable, 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, Very Low Income Household, or Sixty Percent Income Household, as
applicable, 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(e), the Unit
with the over-income Tenant will no longer be considered a County Assisted Unit.
(f) 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.
2.6 Loss of Subsidy.
(a) It is anticipated that certain Units in the Development (the "Subsidy
Units") will receive Project-Based Section 8 or other rental subsidy payments (the "Rental
Subsidy") throughout the Term, as reflected in the Approved Development Budget.
Notwithstanding Section 2.4(b), if any change in federal law occurs, or any action (or inaction)
by Congress or any federal or State agency occurs, which results in a reduction, termination or
nonrenewal of the Rental Subsidy through no fault of the Borrower, such that the Rental Subsidy
shown on the Approved Development Budget is no longer available, Borrower may increase the
Rent on one or more of the County-Assisted Units that overlap with a Subsidy Unit, to the Sixty
Percent Income Rent, subject to the following requirements:
(1) At the time Borrower requests an increase in the Rent, Borrower
shall provide the County with an operating budget for the Development for the County's
approval pursuant to Section 4.4 of the Loan Agreement, showing the impact of the loss or
reduction of the Rental Subsidy (the "Operating Budget");
(2) The number of County-Assisted Units subject to the Rent increase
and the level of rent increase may not be greater than the amount required to ensure that the
Development generates sufficient income to cover its operating costs and debt service as shown
on the Operating Budget, and as is necessary to maintain the financial stability of the
Development; and
(3) Any such Rent increase must be pursuant to a transition plan
approved by the County, consistent with remedial measures set forth in California Code of
Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or successor regulation
applicable to California's Federal and State Low Income Housing Tax Credit Program.
(b) Borrower shall use good faith efforts to obtain alternative sources of rental
subsidies and shall provide the County with annual progress reports on efforts to obtain
alternative sources of rental subsidies that would allow the rents on the County-Assisted Units to
be reduced back to the Rents set out in Section 2.2. Upon receipt of any alternative rental
subsidies, Borrower shall reduce the rents on the County-Assisted Units back to the Rents set out
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in Section 2.2, to the extent that the alternative rental subsidies provide sufficient income to
cover the operating costs and debt service of the Development as shown on the Operating
Budget.
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
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
ve rification. 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.
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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 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 Regulatory Agreement) for a
period of not less than five (5) years after the ir 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 Combined County 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 Combined County 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. 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 Combined County 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, 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.
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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 Regulatory Requirements.
(a) 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; and (iii) any other regulatory
requirements imposed on the Development including but not limited to regulatory agreements
associated with the Low Income Housing Tax Credits provided by the California Tax Credit
Allocation Committee, and rental subsidies provided to the Development (the "Development
Regulatory Documents ").
(b) Borrower shall promptly notify the County in writing of the existence of
any default under any Development Regulatory Documents, and provide the County copies of
any such notice of default.
4.3 Marketing Plan; Tenant Selection Plan.
(a) Marketing Plan.
(1) No later than six (6) months prior to the date rehabilitation 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 rehabilitation 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 rehabilitation 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").
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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 rehabilitation 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 rehabilitation 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
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, Very
Low Income Household, or Sixty Percent 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; and
(3) include a provision that requires a Tenant who is residing in a Unit
required to be accessible pursuant to Section 3.9(b) of the Loan Agreement, 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 Term, Borrower shall comply with the Marking Plan and
Tenant Selection Plan approved by the County.
(c) Any termination of a lease or refusal to renew a lease for a County
Assisted Unit within the Development must be preceded by not less than sixty (60) days written
notice to the Tenant by Borrower specifying the grounds for the action.
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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 ma nagement representative shall reside at the Property.
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 the John Stewart
Company 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 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
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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 6.6 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: (i) in decent, safe and
sanitary condition, (ii) in good condition and repair, and (iii) free of all health and safety defects.
Such maintenance must be in accordance with (i) 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) any other standards provided by the County (collectively, the "Maintenance
Standards"). Borrower shall correct any life-threatening maintenance deficiencies 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
rehabilitation 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
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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 Transfers.
(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 the Loan
Documents; 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 this County Regulatory
Agreement. The County 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 6.1, no Transfer is permitted
without the prior written consent of the County, which the County may withhold in its sole
discretion. The Combined County 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 the admission of the Investor Limited Partner
and Red Stone Equity Manager, LLC, a Delaware limited liability company, to Borrower as
limited partners. 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
RCD, or a non-profit affiliate of RCD, and an assumption of the Combined County Loan by such
transferee at or prior to 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, (ii) the assignment and assumption agreement evidencing such Transfer requires the
transferee to expressly assume the obligations of Borrower under the Loan Documents, and (iii)
the County is provided executed copies of all documents evidencing the Transfer.
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(e) The County hereby approves the purchase of the Investor Limited Partner
interest by RCD, or a non-profit affiliate of RCD at or prior to 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 County is provided
executed copies of all documents evidencing the Transfer.
(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 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, 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.
(g) The County hereby approves the grant of the security interests in the
Development for Approved Financing as such term is defined in Section 1.1(f) of the Loan
Agreement.
6.2 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 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
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.
6.3 Application of Provisions. The provisions of this County Regulatory Agreement
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apply to the Property for the entire Term even if the Combined County 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 Combined
County Loan on the condition, and in consideration of, this provision, and would not do so
otherwise.
6.4 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
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.
6.5 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.
6.6 Enforcement by the County.
(a) 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, the County may enforce this County Regulatory Agreement
by any or all of the following actions, or any other remedy provided by law:
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(1) Calling the Combined County Loan. The County may declare a
default under the Loan Documents, accelerate the indebtedness evidenced by the Loan
Documents, and proceed with foreclosure under the Deed of Trust.
(2) 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.
(3) Remedies Provided Under Loan Documents. The County may
exercise any other remedy provided under the Loan Documents.
(b) The County shall provide notice of a default to the Investor Limited
Partner and any limited partner of Borrower who has requested written notice from the County in
the manner set forth in Section 6.5 of the Loan Agreement.
6.7 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.
6.8 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.
6.9 Governing Law. This County Regulatory Agreement is governed by the laws of
the State of California.
6.10 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.
6.11 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.
6.12 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
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Borrower: Antioch Recap, L.P.
c/o Resources for Community Development
2220 Oxford Street
Berkeley, California 94704
Attention: Executive Director
Investor Limited
Partner: RSEP Holding, LLC
c/o Red Stone Equity Partners, LLC
1100 Superior Avenue, Suite 1 640
Cleveland, OH 44114
Attention: General Counsel
Such addresses may be changed by notice to the other party given in the same manner as
provided above.
6.13 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.
6.14 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.
6.15 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the
Property, this County Regulatory Agreement will revive according to its original terms if, during
the 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.
6.16 County Regulatory Agreement. The County and Borrower are entering into this
County Regulatory Agreement concurrently with the HOME Regulatory Agreement. This
County Regulatory Agreement applies to all the County-Assisted Units including the HOME-
Assisted Units. The HOME Regulatory Agreement applies only to the HOME-Assisted Units
and includes HOME requirements applicable to the use of HOME Funds. The HOME
Regulatory Agreement will be in effect for the HOME Term. Compliance with the terms of the
HOME Regulatory Agreement will be deemed compliance with this County Regulatory
Agreement during the HOME Term as it applies to the HOME-Assisted Units. In the event of a
conflict between the HOME Regulatory Agreement and this County Regulatory Agreement
during the HOME Term as it applies to the HOME-Assisted Units, the terms of the HOME
Regulatory Agreement will prevail.
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Signature page
Terrace Glen County Regulatory Agreement
863\107\2383515.2
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:
Antioch Recap, L.P., a California limited
partnership
By: RCD GP III, LLC, a California limited
liability company, its general partner
By: Resources for Community
Development, a California nonprofit
public benefit corporation, its sole
member/manager
By:_______________________
Daniel Sawislak, Executive
Director
October 16, 2018 BOS Minutes 975
863\107\2383515.2
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: ______________________________
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.
October 16, 2018 BOS Minutes 976
863\107\2383515.2
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: ______________________________
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.
October 16, 2018 BOS Minutes 977
A-1
863\107\2383515.2
EXHIBIT A
Legal Description
(Terrace Glen)
The land is situated in the State of California, County of Contra Costa, and is described as
follows:
October 16, 2018 BOS Minutes 978
1
863\107\2382947.1
ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT
(Pinecrest)
THIS ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT ("Agreement")
is dated October 31, 2018 and is by and among the County of Contra Costa, a political
subdivision of the State of California (the "County"), Pincecrest Affordable Housing, L.P., a
California limited partnership (the "Seller"), and Antioch Recap, L.P., a California limited
partnership (the "Buyer").
RECITALS
A. The Seller is the owner of that certain real property located at 1945 and 1949
Cavallo Road, Antioch, County of Contra Costa, State of California (the "Pinecrest Property").
The Pinecrest Property is improved with twenty-four (24) units of affordable housing and
attendant site improvements (the "Pinecrest Improvements ").
B. The County made a loan to the Seller that is a secured lien on the Pinecrest
Property. The County loan consists of Six Hundred Twenty-Five Thousand Dollars ($625,000),
funded using Home Investment Partnerships Act funds from the United States Department of
Housing and Urban Development pursuant to the Cranston-Gonzales National Housing Act of
1990 (the "Original Pinecrest Loan").
C. The Buyer desires to acquire the Pinecrest Property from the Seller and to assume
the Seller's obligations under the Original Pinecrest Loan. Furthermore, the Pinecrest
Improvements are in need of rehabilitation which will require additional financing. In support of
the rehabilitation of the Pinecrest Property and the concurrent rehabilitation thirty-two (32) units
of affordable housing located at 35, 45, 101, 103, 105 and 107 W. 20th Street, and 104 and 106
W. 20th Street in the City of Antioch (the "Terrace Glen Property") which is being acquired by
the Buyer at the same time it acquires the Pinecrest Property, the County has agreed to
restructure the Original Pinecrest Loan, as well as the existing financing associated with the
Terrace Glen Property, and to provide new financing to the Buyer (collectively, the "New
Financing").
D. The transfer all of the Seller's rights, title, and interest in the Pinecrest Property to
the Buyer (the "Transfer"), and the assignment of the Original Pinecrest Loan to the Buyer
require the County's consent.
E. Concurrent with the Transfer and the assignment and assumption of the Original
Pinecrest Loan, the documents evidencing the Original Pinecrest Loan will be terminated and
replaced with new loan documents evidencing the New Financing as detailed in a loan agreement
to be executed by the County and the Buyer (the "County Loan Agreement").
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties
hereto and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
October 16, 2018 BOS Minutes 979
2
863\107\2382947.1
AGREEMENT
1. Representations of the Seller. The Seller represents and warrants that:
a. It has not previously assigned, pledged, hypothecated or otherwise
transferred any of its rights, title, or interest in or obligations in the Original Pinecrest Loan.
b. It has received the consent of all other existing lenders on the Pinecrest
Property to the transfer of the Pinecrest Property, and the assignment and assumptions
contemplated by this Agreement and that such actions will not constitute a default under any of
such lenders' loan documents.
c. No event has occurred and is continuing which would constitute a default
and no event has occurred and is continuing which, with notice or the passage of time or both,
would be an event of default under any of the documents evidencing the Original Pinecrest Loan.
2. Consent to Transfer of Property. Subject to the Buyer's execution of the County
Loan Agreement in a form satisfactory to the County, the County consents to the Transfer.
3. Assignment of Original Pinecrest Loan.
a. Assignment. The Seller hereby assigns to the Buyer all of the Seller's
rights, title, and interest in and obligations under the Original Pinecrest Loan (the "Assignment").
b. Assumption. The Buyer hereby accepts the Assignment and assumes the
Seller's obligation to repay the Original Pinecrest Loan, in accordance with the terms of a
promissory note from the Buyer to the County to be executed concurrent ly with the County Loan
Agreement.
c. County Consent. Subject to the Buyer's execution of the County Loan
Agreement in a form satisfactory to the County, the County consents to the Assignment.
4. 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.
5. Attorneys' Fees Enforcement. If any attorney is engaged by any party hereto to
enforce or defend any provision of this Agreement, the prevailing party or parties are entitled to
costs and reasonable attorneys' fees.
6. Successors and Assigns. This Agreement binds and inures to the benefit of the
legal representatives, heirs, successors and assigns of the parties.
7. California Law. The laws of the State of California govern all matters arising out
of this Agreement.
October 16, 2018 BOS Minutes 980
3
863\107\2382947.1
8. Counterparts. This Agreement may be signed by the different parties hereto in
counterparts, each of which is deemed an original but all of which together constitute one and the
same agreement.
[remainder of page left intentionally blank]
[signatures on following pages]
October 16, 2018 BOS Minutes 981
Signature Page
County Pinecrest Assignment Agreement 4
863\107\2382947.1
IN WITNESS WHEREOF, the parties have executed this Agr eement as of the day first
above written.
SELLER:
Pincecrest Affordable Housing, L.P.,
a California limited partnership
By: Resources for Community Development, a
California nonprofit public benefit corporation,
its general partner
By:_________________________
Daniel Sawislak, Executive Director
BUYER:
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III, LLC,
a California limited liability company,
its general partner
By: Resources for Community Development, a
California nonprofit public benefit
corporation its sole member/manager
By:_________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 982
Signature Page
County Pinecrest Assignment Agreement 5
863\107\2382947.1
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
October 16, 2018 BOS Minutes 983
1
863\107\2382925.1
ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT
(Terrace Glen)
THIS ASSIGNMENT, ASSUMPTION, AND CONSENT AGREEMENT ("Agreement")
is dated October 31, 2018 and is by and among the County of Contra Costa, a political
subdivision of the State of California (the "County"), Resources for Community Development, a
California nonprofit public benefit corporation (the "Seller"), and Antioch Recap, L.P., a
California limited partnership (the "Buyer").
RECITALS
A. The Seller is the owner of that certain real property located at 35, 45, 101, 103,
105 and 107 W. 20th Street, and 104 and 106 W. 20th Street, Antioch, County of Contra Costa,
State of California (the "Terrace Glen Property"). The Terrace Glen Property is improved with
thirty-two (32) units of affordable housing and attendant site improvements (the "Terrace Glen
Improvements ").
B. The Seller acquired the Terrace Glen Property from Terrace Glen Partners, L.P., a
California limited partnership ("Terrace Glen"). When it acquired the Terrace Glen Property, the
Seller assumed Terrace Glen's obligation to repay a loan the County had made to Terrace Glen
that is a secured lien on the Terrace Glen Property. The County loan assumed by the Seller
consists of Eight Hundred Fifty-Six Thousand Dollars ($856,000), funded using Home
Investment Partnerships Act funds from the United States Department of Housing and Urban
Development pursuant to the Cranston-Gonzales National Housing Act of 1990 (the "Original
Terrace Glen Loan").
C. The Buyer desires to acquire the Terrace Glen Property from the Seller and to
assume the Seller's obligations under the Original Terrace Glen Loan. Furthermore, the Terrace
Glen Improvements are in need of rehabilitation which will require additional financing. In
support of the rehabilitation of the Terrace Glen Property and the concurrent rehabilitation
twenty-four (24) units of affordable housing located at 1945 and 1949 Cavallo Road in the City
of Antioch (the "Pinecrest Property") which is being acquired by the Buyer at the same time it
acquires the Terrace Glen Property, the County has agreed to restructure the Original Terrace
Glen Loan, as well as the existing financing associated with the Pinecrest Property, and to
provide new financing to the Buyer (collectively, the "New Financing").
D. The transfer all of the Seller's rights, title, and interest in the Terrace Glen
Property to the Buyer (the "Transfer"), and the assignment of the Original Terrace Glen Loan to
the Buyer require the County's consent.
E. Concurrent with the Transfer and the assignment and assumption of the Original
Terrace Glen Loan, the documents evidencing the Original Terrace Glen Loan will be terminated
and replaced with new loan documents evidencing the New Financing as detailed in a loan
agreement to be executed by the County and the Buyer (the "County Loan Agreement").
October 16, 2018 BOS Minutes 984
2
863\107\2382925.1
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties
hereto and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Representations of the Seller. The Seller represents and warrants that:
a. It has not previously assigned, pledged, hypothecated or otherwise
transferred any of its rights, title, or interest in or obligations in the Original Terrace Glen Loan.
b. It has received the consent of all other existing lenders on the Terrace
Glen Property to the transfer of the Terrace Glen Property, and the assignment and assumptions
contemplated by this Agreement and that such actions will not constitute a default under any of
such lenders' loan documents.
c. No event has occurred and is continuing which would constitute a default
and no event has occurred and is continuing which, with notice or the passage of time or both,
would be an event of default under any of the documents evidencing the Original Terrace Glen
Loan.
2. Consent to Transfer of Property. Subject to the Buyer's execution of the County
Loan Agreement in a form satisfactory to the County, the County consents to the Transfer.
3. Assignment of Original Terrace Glen Loan.
a. Assignment. The Seller hereby assigns to the Buyer all of the Seller's
rights, title, and interest in and obligations under the Original Terrace Glen Loan (the
"Assignment").
b. Assumption. The Buyer hereby accepts the Assignment and assumes the
Seller's obligation to repay the Original Terrace Glen Loan, in accordance with the terms of a
promissory note from the Buyer to the County to be executed concurrent ly with the County Loan
Agreement.
c. County Consent. Subject to the Buyer's execution of the County Loan
Agreement in a form satisfactory to the County, the County consents to the Assignment.
4. 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.
5. Attorneys' Fees Enforcement. If any attorney is engaged by any party hereto to
enforce or defend any provision of this Agreement, the prevailing party or parties are entitled to
costs and reasonable attorneys' fees.
October 16, 2018 BOS Minutes 985
3
863\107\2382925.1
6. Successors and Assigns. This Agreement binds and inures to the benefit of the
legal representatives, heirs, successors and assigns of the parties.
7. California Law. The laws of the State of California govern all matters arising out
of this Agreement.
8. Counterparts. This Agreement may be signed by the different parties hereto in
counterparts, each of which is deemed an original but all of which together constitute one and the
same agreement.
[remainder of page left intentionally blank]
[signatures on following pages]
October 16, 2018 BOS Minutes 986
Signature Page
County Terrace Glen Assignment Agreement 4
863\107\2382925.1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first
above written.
SELLER:
Resources for Community Development,
a California nonprofit public benefit corporation
By:_________________________
Daniel Sawislak, Executive Director
BUYER:
Antioch Recap, L.P.,
a California limited partnership
By: RCD GP III, LLC,
a California limited liability company,
its general partner
By: Resources for Community Development, a
California nonprofit public benefit
corporation its sole member/manager
By:_________________________
Daniel Sawislak, Executive Director
October 16, 2018 BOS Minutes 987
Signature Page
County Terrace Glen Assignment Agreement 5
863\107\2382925.1
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
October 16, 2018 BOS Minutes 988