HomeMy WebLinkAboutMINUTES - 03232010 - C.137RECOMMENDATION(S):
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FISCAL IMPACT:
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BACKGROUND:
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APPROVE OTHER
RECOMMENDATION OF CNTY
ADMINISTRATOR
RECOMMENDATION OF BOARD
COMMITTEE
Action of Board On: 03/23/2010 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF
SUPERVISORS
Contact: .
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: March 23, 2010
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: , Deputy
cc:
C.137
To:Board of Supervisors
From:Michael J. Lango, General Services Director
Date:March 23, 2010
Contra
Costa
County
Subject:Property Transfer of the Rosie the Riveter
CLERK'S ADDENDUM
RELISTED to April 13, 2010.
863\82\796582.4 1
PREDEVELOPMENT LOAN AGREEMENT
ASSIGNMENT OF DOCUMENTS
(Berrellesa Palms)
This agreement is dated March ___, 2010 and is between Resources for Community
Development, a California nonprofit public benefit corporation ("Assignor"), and the County of
Contra Costa, a political subdivision of the State of California (the "Assignee").
RECITALS
A. The Borrower has entered into a Purchase and Sale Agreement dated February 8,
2008, as amended, with Earl D. Dunivan and Joanne Dunivan, trustees of the Dunivan Family
Trust under Declaration of Trust, dated February 20, 2007 (the "Purchase Agreement"), for the
purchase of real property located at 310 Berrellesa Street in the City of Martinez, County of
Contra Costa, State of California (the “Property”).
B. The Borrower intends to purchase the Property in accordance with the terms of
the Purchase Agreement. Following acquisition of the Property, the Borrower intends to develop
the Property with forty-nine (49) units of rental housing affordable to low-income households
and attendant site improvements (together, the "Improvements")
C. The Borrow and the County are parties to a loan agreement of even date herewith
under which the County is lending Borrower up to Six Hundred Fifty Thousand Dollars
($650,000) in HOME Funds to finance Predevelopment Activities in connection with the
Improvements (the “Predevelopment Loan”) (the “Predevelopment Loan Agreement”).
D. As security for the Predevelopment Loan, Assignor desires to assign to Assignee,
and Assignee desires to accept from Assignor, the assignment of Assignor’s right, title, and
interest in the Project Documents, as defined below.
E. All capitalized terms used but not defined in this agreement have the meanings
set forth in the Predevelopment Loan Agreement.
F. Architect’s consent to the Assignment, as defined below, is attached hereto as
Exhibit A and incorporated herein by reference.
The parties therefore agree as follows:
AGREEMENT
1. Assignment by Assignor. Assignor hereby assigns and delegates to Assignee, and
Assignee hereby accepts from Assignor, all of Assignor's right, title, and interest in and
obligations under the Project Documents (the “Assignment”). For purposes of this agreement,
“Project Documents” means (i) the Project Contracts, (ii) the Reports, Plans and Specifications,
(iii) the Land Use Approvals, and (iv) the General Documents. For purposes of this agreement,
“Project Contracts” means all architectural design, construction, engineering and consulting
863\82\796582.4 2
contracts and development agreements that are entered into by Assignor and any Consultant, as
defined below, in connection with the Improvements and any and all amendments,
modifications, supplements, addenda and general conditions thereto. For purposes of this
agreement, “Reports, Plans, and Specifications” means all plans and specifications, shop
drawings, working drawings, reports, studies, amendments, modifications, changes, supplements,
general conditions, addenda and work product thereto that are prepared by Assignor or any
Consultant in connection with the Improvements. For purposes of this agreement, “Land Use
Approvals” means all land use approvals, conditional use permits, building permits and other
governmental entitlements and approvals of any nature obtained for the Improvements. For
purposes of this agreement, “General Documents” means all financing or other applications and
all other tangible documents, except those of a proprietary or confidential nature, that relate to
the Improvements. For purposes of this Agreement, "Consultant" means any architect,
contractor, engineer, consultant or other person or entity that does any of the following: (i)
enters into Project Contracts with Assignor (other than attorneys' agreements for the provision of
legal services), or (ii) prepares Reports, Plans and Specifications for Assignor. It is intended that
all Project Documents, whenever produced, be assigned through this Assignment to Assignee as
security for the Predevelopment Loan.
The Architect's consent to the Assignment is attached as Exhibit A. The Assignor shall obtain
similar consents from each Consultant with whom Assignor has entered into a Project Contract.
The Assignment made hereunder is subject to any conditions or limitations in the Project
Documents existing as of the date of this agreement.
2. Purpose. The Assignment secures: (i) payment to Assignee of all sums now or
hereafter owing under the Note, and (ii) payment and performance by Assignor of all its
obligations under the Predevelopment Loan Agreement.
3. No Assumption of Obligations. Neither this agreement nor any action by
Assignee constitutes an assumption by Assignee of any of Assignor’s obligations or duties under
any Project Documents, including, but not limited to, the obligation to pay for the preparation of
any Project Documents. The Assignor continues to be liable for all obligations under the Project
Documents. Assignee's acceptance of the Assignment does not constitute approval of the Project
Documents by Assignee.
4. Attorney-In-Fact. Assignor hereby irrevocably appoints Assignee as its attorney-
in-fact, which power is coupled with an interest, so that Assignee has the right to demand,
receive, and enforce any and all of Assignor's rights with respect to the Project Documents, and
to perform any and all acts in the name of Assignor or in the name of Assignee with the same
force and effect as if performed by Assignor in the absence of this Assignment, upon the
occurrence of any of the following events (each a “Triggering Event”): (i) an Event of Default
by Assignor under the Predevelopment Loan Agreement, (ii) any termination of the
Predevelopment Loan Agreement. Until a Triggering Event occurs, Assignor is entitled to
exercise all rights pertaining to the Project Documents.
5. No Previous Assignment. Assignor represents and warrants to Assignee that no
previous assignment(s) of its rights or interest in or to the Project Documents has or have been
863\82\796582.4 3
made, and Assignor agrees not to assign, sell, pledge, transfer, mortgage, or hypothecate its
rights or interest in the Project Documents as long as Assignee holds or retains any security
interest in the Project Documents under the Predevelopment Loan Agreement.
6. Governing Law. This agreement is governed by the laws of the State of
California.
7. Binding Upon Successors and Assigns. This agreement is binding upon and
inures to the benefit of the heirs, legal representatives, successors-in-interest, and assigns of
Assignor and Assignee; provided, however, this is not to be construed and is not intended to
waive the restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation, or
encumbrance by Assignor contained in the Predevelopment Loan Agreement.
8. Headings. Section headings contained in this agreement are for ease of reference
only and are to be disregarded for all other purposes, including the construction or enforcement
of this agreement or any of its provisions.
9. Termination. This agreement, and the lien on the Project Documents hereby
created, terminate on the earlier to occur of: (i) Assignor's repayment in full of the
Predevelopment Loan; (ii) Assignee's forgiveness of the Predevelopment Loan; (iii) recordation
of the Deed of Trust as an encumbrance on the Property; and, (iv) recordation of a deed of trust
as an encumbrance on the Property as security for a Subsequent Loan.
10. Counterparts. This agreement may be executed in counterparts by the parties
hereto, each of which will be deemed to be an original, and all such counterparts will constitute
one and the same instrument.
[Remainder of this page intentionally left blank.]
Assignment of Project Documents
Signature Page
863\82\796582.4
4
The parties are signing this agreement as of the date set forth in the introductory
paragraph.
Approved as to form:
Sharon L. Anderson
County Counsel
By:_____________________
Kathleen Andrus
Deputy County Counsel
ASSIGNOR:
RESOURCES FOR COMMUNITY
DEVELOPMENT, a California nonprofit
public benefit corporation
By: ______________________________
Name:____________________________
Its:_______________________________
ASSIGNEE:
COUNTY OF CONTRA COSTA, a political
subdivision of the State of California
By: ________________________________
James Kennedy
Deputy Director – Redevelopment
Consent to Assignment of
Project Documents
863\82\796582.4
A-1
EXHIBIT A
ARCHITECT'S CONSENT
(Berrellesa Palms)
KTGY Group, Inc., a California Corporation, (“Architect”) hereby consents to the
assignment by Resources for Community Development (“RCD”) to the County of Contra Costa
(the “County”) all documents and materials that relate to the development of forty-nine (49) units
of rental housing affordable to low-income households and attendant site improvements that
RCD intends to construct at 310 Berrellesa Street, in Martinez, California (the “Project”),
including all of the following: (i) architectural design, construction, engineering and consulting
contracts and development agreements that are entered into by RCD and Architect in connection
with the Project and any and all amendments, modifications, supplements, addenda and general
conditions thereto (together, the “Architect Contracts”), and (ii) all plans and specifications, shop
drawings, working drawings, reports, studies, amendments, modifications, changes, supplements,
general conditions, addenda and work product thereto that are prepared by Architect in
connection with the Project (together, the “Architect Documents”). Architect acknowledges that
there are presently no unpaid claims or amounts due to the undersigned in connection with the
Project.
The undersigned agrees that if, at any time, the County elects to undertake or cause the
completion of the Architect Documents and gives the undersigned written notice of such
election; then so long as the undersigned has received, receives, or continues to receive the
compensation called for under the Architect Contracts, the County may, at its option, use and
rely on the Architect Documents for the purposes for which they are prepared, and the
undersigned will continue to perform its obligations under the Architect Contracts for the benefit
and account of the County in the same manner as if performed for the benefit or account of RCD
in the absence of the assignment to the County.
The undersigned further agrees that, in the event of a default by RCD under the Architect
Contracts, or any agreement entered into with the undersigned in connection with the Architect
Documents, so long as RCD's interest in the Architect Contracts and Architect Documents is
assigned to the County, the undersigned will give written notice to the County of such default.
The County will have thirty (30) days from the receipt of such written notice to remedy or cure
the default; provided, however, nothing herein requires the County to cure the default.
Formal notices, demands, and communications among the County, RCD, and the
Architect must be sufficiently given if and must not be deemed given unless dispatched 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
Consent to Assignment of
Project Documents
863\82\796582.4
A-2
Department of Conservation and Development
2530 Arnold Drive, Suite 190
Martinez, CA 94553
Attention: Deputy Director - Redevelopment
RCD:
Resources for Community Development
2730 Telegraph Avenue
Berkeley, CA 94705
Attn: Executive Director
Architect:
KTGY Group, Inc.
283 4th Street, Third Floor
Oakland, CA 94607
Attn: Jill D. Williams
The undersigned represents that it has no knowledge of any prior assignment(s) of any
interest in either the Architect Contracts or the Architect Documents.
Executed on ____________, 2010
Title of
Architect Contract(s):
__________________________
Date of
Architect Contract(s):
__________________________
By: ______________________________
Name: ____________________________
Its: _______________________________