HomeMy WebLinkAboutMINUTES - 09212010 - C.82RECOMMENDATION(S):
1. APPROVE and AUTHORIZE the Conservation and Development Director, or designee,
to execute required legal documents to provide $800,000 in HOME Investment Partnership
Act (HOME) funds to BRIDGE Regional Partners, Inc., a California nonprofit public
benefit corporation, for the Woods Grove Apartment project in Pittsburg; and
2. FIND, as the responsible agency, the City of Pittsburg (the lead agency) to have made the
correct determination that the project is categorically excluded from the California
Environmental Quality Act; and
3. DIRECT the Conservation and Development Director, or designee, to file a Notice of
Exemption for this project with the County Clerk; and
4. DIRECT the Conservation and Development Director, or designee, to arrange for
payment of the $50 handling fee to the County Clerk for filing such Notice of Exemption.
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 09/21/2010 APPROVED AS RECOMMENDED OTHER
Clerks Notes:
VOTE OF SUPERVISORS
AYE:John Gioia, District I
Supervisor
Gayle B. Uilkema, District II
Supervisor
Mary N. Piepho, District III
Supervisor
Susan A. Bonilla, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: Kara Douglas
335-7223
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: September 21, 2010
David J. Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc:
C.82
To:Board of Supervisors
From:Catherine Kutsuris, Conservation & Development Director
Date:September 21, 2010
Contra
Costa
County
Subject:APPROVAL OF HOME INVESTMENT PARTNERSHIPS ACT LEGAL DOCUMENTS FOR THE
WOODS GROVE APARTMENTS IN PITTSBURG
FISCAL IMPACT:
No General Fund impact. HOME funds are provided to the County on a formula
allocation basis through the U.S. Department of Housing and Urban Development
(HUD). CFDA# 14.256
BACKGROUND:
The purpose of the Woods Grove Apartment project is to improve the supply of
multi-family rental housing affordable to and occupied by lower income households in
East County through the rehabilitation of an existing 80 unit apartment development in
Pittsburg. BRIDGE Regional Partners purchased this development in 2008 and is
working to secure financing for substantial rehabilitation.
On April 29, 2009, the Board of Supervisors approved $800,000 in HOME funds for this
project.
On March 23, 2010, the Board of Supervisors approved an additional $500,000 in
HOME funds for a total allocation of $1.3 million. The developer, BRIDGE Regional
Partners, has requested to close on $800,000 of the HOME funds in order to install
tankless water heaters to replace existing inefficient central water heating, and improve
the landscaping to reduce water consumption. These improvements will reduce water and
heating bills, and will allow BRIDGE to keep rents affordable.
Eleven of the units will be designated as HOME-assisted. Nine will be affordable and
available to households earning up to 30 percent of the area median income (AMI). The
remaining two units will be affordable and available to households earning up to 40
percent AMI. HOME funds will be provided to BRIDGE in the form of a 55-year,
residual receipt loan at a three percent interest rate. Affordability and use restrictions will
be incorporated into the County loan documents. Staff will return to the Board of
Supervisors at a later date for approval of the legal documents for the remaining
$500,000 in HOME funds.
BRIDGE is applying for low income housing tax credits as the primary source of funds
for the remaining rehabilitation. BRIDGE wants to proceed with the above improvements
immediately in order to reduce the high water and heating costs.
Due to the high construction costs and limited revenue from the restricted rents, the total
amount of the financing provided to the project will likely exceed the value of the
completed project. Even though the proposed equity investment from low income
housing tax credits is substantial compared to the amount of long term debt, the
partnership agreement will have numerous safe guards of the investors equity. These safe
guards essentially subordinate the County’s debt to the investor’s equity. Therefore, the
County funds may not be fully secured through the value of the property at the time the
transaction closes.
CEQA Determination:
The City of Pittsburg reviewed this project pursuant to the requirements of the California
Environmental Quality Act (CEQA). The City determined that the project is categorically
exempted from CEQA under CEQA Guidelines Sections 15301, Existing Facilities;
15303, New Construction of Conversion of Small Structures; and 15304, Minor
Alterations to Land. County staff concurs with the City’s determination.
County Counsel has approved to form the following attached documents:
HOME Loan Agreement
Promissory Note
Deed of Trust with Assignment Of Rents, Security Agreement, And Fixture Filing
Regulatory Agreement and Declaration Of Restrictive Covenants
ATTACHMENTS
Loan Agreement
Regulatory Agreement
Promissory Note
Deed of Trust
Notice of Exemption
863\83\852528.2 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Contra Costa County
Department of Conservat io n and Development
Redevelopment Divisio n
2530 Arno ld Drive, Suite 190
Martinez, CA 94553
At tention: Deputy Director -Redevelopment
No fee for recording pursuant to
Government Code Section 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
(Woods Grove Apartments –HOME Loan)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT, AND FIXTURE FILING ("Deed of Trust") is made as o f September 1, 2010, by
and amo ng BRIDGE Regional Partners, Inc., a California nonprofit public benefit corporation
("Trustor"), Chicago Tit le Company, a California corporation ("Trustee"), and the County of
Contra Costa, a polit ical 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 securit y of Beneficiary, under and subject to the terms and conditio ns
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 connect io n therewith
or as a means of access thereto, including (without limiting the generalit y of the foregoing) all
tenements, hereditaments and appurtenances thereof and thereto;
TOGETHER WITH any and all buildings and improvements of every kind and
descript io n now or hereafter erected thereon, and all property of the 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;
863\83\852528.2 2
TOGETHER WITH all right, tit le 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,
adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to
or used in connect io n 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 equit y, including, but
not limited to, all deposits made with or other security given by Trustor to utilit y co mpanies, 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 fro m a change o f 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 o f 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 connectio n 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 condemnat io n 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, accessio ns and proceeds; and all books, records and files relating to any o f the
fo regoing.
All o f 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 (the
"Secured Obligat io ns"):
A.Payment to Beneficiary of all sums at any time owing under or in connect io n with
the Note (defined in Sect io n 1.4 below) until paid or cancelled and any other amounts owing
under the Loan Documents (defined in Sectio n 1.3 below). Said principal and other payments
863\83\852528.2 3
are due and payable as provided in the Note or other Loan Documents, as applicable. The Note
and all its terms are incorporated herein by reference, and this conveyance secures any and all
extensio ns thereof, however evidenced;
B.Payment of any sums advanced by Beneficiary to protect the Security pursuant to
the terms and provisio ns of this Deed of Trust following a breach of Trustor's obligat io n to
advance said sums and the expiration of any applicable cure period, with interest thereon as
provided herein;
C.Performance of every obligat io n, covenant or agreement of Trustor contained
herein and in the Loan Documents; and
D.All mo dificat io ns, extensio ns and renewals of any of the Secured Obligat io ns
(including wit hout limitat io n, (i) modificat io ns, extensio ns or renewals at a different rate of
int erest, or (ii) deferrals or acceleratio ns of the required principal payment dates or interest
payment dates or both, in whole or in part), however evidenced, whether or not any such
mo dification, extension or renewal is evidenced by a new or additio nal promissory note or notes.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
ARTICLE 1
DEFINITIONS
In addit io n to the terms defined elsewhere in this Deed of Trust, the follo wing terms have
the fo llo wing meanings in this Deed of Trust:
Section 1.1 The term "Loan" means the loan made by the Beneficiary to the Trustor in
the amount of Eight Hundred Thousand Dollars ($800,000).
Section 1.2 The term "Loan Agreement" means that certain HOME 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 the Trustor Eight Hundred Thousand Dollars
($800,000).
Section 1.3 The term "Loan Documents" means this Deed of Trust, the Note, the Loan
Agreement, and the Regulatory Agreement , and any other debt, loan or security instruments
between Trustor and the Beneficiary relating to the Loan.
Section 1.4 The term "Note" means the promissory note in the principal amount of
Eight Hundred Thousand Dollars ($800,000) of even date herewith, executed by Trustor in favor
of the Beneficiary, as it may be amended or restated, the payment of which is secured by this
Deed of Trust. (A copy of the Note is on file wit h the Beneficiary and terms and provisions o f
the Note are incorporated herein by reference.)
Section 1.5 The term "Principal" means the amount required to be paid under the
Note.
863\83\852528.2 4
Section 1.6 The term "Regulatory Agreement" means the regulatory agreement of
even date herewit h by and between the Beneficiary and the Trustor.
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
Obligat io ns, the Trustor will, at the Trustor's own expense, maintain, preserve and keep the
Security or cause the Securit y to be maintained and preserved in good conditio n. The Trustor
will from t ime to time make or cause to be made all repairs, replacements and renewals deemed
proper and necessary by it. The Beneficiary has no responsibilit y in any of these matters or for
the making of improvements or addit io ns to the Securit y.
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 connect io n with the Security,
diligent ly to file or procure the filing of a valid notice of cessatio n upon the event of a cessat io n
of labor on the work or construction on the Security for a continuous period of thirty (30) days or
mo re, and to take all other reasonable steps to forestall the assertion of claims of lien against the
Security of any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary
as its agent (said agency being coupled with an int erest) with the authorit y, but without any
obligat io n, to file for record any notices o f 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 cont inue to take, those actions as
hereinbefore provided.
Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or
claims as Beneficiary specifies upon laborers, materialmen, subcontractors or other persons who
have furnished or claim to have furnished labor, services or materials in connection with the
Security. Nothing herein contained requires Trustor to pay any claims for labor, materials or
services which Trustor in good faith disputes and is diligently contest ing provided that Trustor
shall, within thirt y (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 Grant ing 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 installat io n and maintenance of public ut ilit ies including, without
limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law, and
as approved, in writ ing, by Beneficiary.
863\83\852528.2 5
Section 2.3 Assignment of Rents.
As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby
abso lut ely and uncondit io nally 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. 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 Obligatio ns wit h the balance, so long as no such breach
has occurred, to the account of Trustor, it being intended by Trustor and Beneficiary that this
assignment of rents const it ut es an abso lut e assignment and not an assignment for addit io nal
securit y 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 possessio n 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 liabilit y on the part of said tenant to inquire further as to the existence of a default by
Trustor.
Trustor hereby covenants that Trustor has not executed any prior assignment of said
rents, 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 Sect io n 2.3, and that at the time of executio n of this Deed of Trust, there has been no
ant ic ipat io n 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 covenant that 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 securit y, 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 execut io n, cancellat io n or modificat io n of leases, the collect io n of all rents
and revenues of the Property, the making of repairs to the Property and the execut io n or
863\83\852528.2 6
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 appointme nt 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 entit led 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 applied first to the costs, if any, of taking control of and managing the Property
and co llect ing 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 obligat io n or
liabilit y 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 Sect io n 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 beco me 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 Sectio n 3.3.
If the Beneficiary or the receiver enters upon and takes and maintains control of the
Property, neither that act nor any applicat io n of rents as provided herein will cure or waive any
default under this Deed of Trust or invalidate any other right or remedy available to Beneficiary
under applicable law or under this Deed of Trust. This assignment of rents of the Property will
terminate at such time as this Deed of Trust ceases to secure the Secured Obligatio ns.
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 utilit y co mpany that are or
may beco me 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
legalit y thereof is prompt ly and act ively 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
863\83\852528.2 7
the Securit y; 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 must not be construed to require
that Trustor maintain a reserve account, escrow account, impound account or other similar
account fo r the payment of future taxes, assessments, charges and levies.
In the event that Trustor fails to pay any o f the items required by this Sect io n 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 beco me part of the Secured Obligatio ns secured hereby, and Trustor
agrees to pay all such amounts.
Section 3.2 Provisio ns Respect ing Insurance.
Trustor agrees to provide insurance conforming in all respects to that required under the
Loan Documents during the course of construction and follo wing complet io n, and at all times
unt il 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 sat is fact io n of the Secured Obligations.
Section 3.3 Ad vances.
In the event the Trustor fails to maintain the full insurance coverage required by this
Deed of Trust or fails to keep the Securit y in accordance with the Loan Documents, the
Beneficiary, after at least seven (7) days prior notice to Trustor, may (but is under no obligation
to) (i) take out the required policies of insurance and pay the premiums on the same, and (ii)
make any repairs or replacements that are necessary and provide for payment thereof. All
amounts so advanced by the Beneficiary will become part of the Secured Obligatio ns (together
with int erest 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 lesser of ten percent (10%) per annum or the maximum rate permitted by law.
ARTICLE 4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages.
All judgments, awards of damages, settlements and compensatio n made in connect io n
with or in lieu of (1) the taking of all or any part of or any int erest in the Property by or under
assert io n 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
863\83\852528.2 8
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 obligat io n secured hereby, in such order and manner as the Beneficiary
determines at its sole option. The Beneficiary is entit led 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 connect io n with any such
settlement or adjustment. All or any part of the amounts so collected and recovered by the
Beneficiary may be released to Trustor upon such condit io ns as the Beneficiary may impose for
it s disposition. Applicat io n 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.
The rights of the Beneficiary under this Section 4.1 are subject to the rights of any senior
mo rtgage lender. The Beneficiary shall release the Funds to Trustor to be used to reconstruct the
improvements on the Property provided that Beneficiary reasonably determines that Trustor
(taking into account the Funds) has sufficient funds to rebuild the improvements in substant ia lly
the form that existed prior to the casualty or condemnat io n.
ARTICLE 5
AGREEMENTS AFFECTING THE PROPERTY; FURTHER
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
Section 5.1 Other Agreements Affect ing Property.
The Trustor shall duly and punctually perform all terms, covenants, condit io ns and
agreements binding upon it under the Loan Documents and any other agreement of any nature
whatsoever now or hereafter involving or affect ing the Securit y 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 emplo ys attorneys or incurs other expenses for the collectio n of amounts due
hereunder or the enforcement of performance or observance of an obligatio n 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 amount s paid by the Beneficiary will be added to the
Secured Obligations, and will bear interest from the date such expenses are incurred at the lesser
of ten percent (10%) per annum or the maximum rate permitted by law.
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
863\83\852528.2 9
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 int erest in the Securit y 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 jurisdict io n(s) as it deems appropriate from time to time in order to
protect the securit y int erest 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 co mpliance with the Loan Documents.
Section 5.7 Inspect io n of the Securit y.
At any and all reasonable times upon sevent y-two (72) hours' notice, the Beneficiary and
it s duly authorized agents, attorneys, experts, engineers, accountants and representatives, may
inspect the Securit y, without payment of charges or fees.
Section 5.8 Nondiscriminat io n.
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 discriminatio n
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
discriminat io n or segregation with reference to the selectio n, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing covenants
will run with the land.
ARTICLE 6
HAZARDOUS WASTE
Trustor shall keep and maintain the Property in compliance wit h, and shall not cause or
permit the Property to be in vio lation o f any federal, state or local laws, ordinances or regulations
relat ing to industrial hygiene or to the environmental conditio ns on, under or about the Property
including, but not limited to, soil and ground water conditions. Trustor shall not use, generate,
manufacture, store or dispose of on, under, or about the Property or transport to or from the
863\83\852528.2 10
Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or
related materials, including without limitation, any substances defined as or included in the
definit io n o f "hazardous substances", hazardous wastes", "hazardous materials", or "toxic
substances" under any applicable federal or state laws or regulatio ns (co llect ively 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 inst it uted, completed or threatened against Trustor or the Property pursuant to any
applicable federal, state or local laws, ordinances, or regulatio ns relating to any Hazardous
Materials, ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party
against Trustor or the Property relat ing to damage, contribution, cost recovery compensation,
lo ss or injury resulting fro m 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 conditio n on any real property adjoining or in the vicinit y of the Property
that could cause the Property or any part thereof to be classified as "border-zo ne property" (as
defined in California Healt h and Safet y Code Section 25117.4) under the provision of California
Health and Safet y Code Section 25220 et seq., or any regulat io n adopted in accordance
therewith, or to be otherwise subject to any restrictions on the ownership, occupancy,
transferabilit y or use of the Property under any Hazardous Materials Law.
Beneficiary has the right to join and participate in, as a party if it so elects, any legal
proceedings or actions init iated in connection wit h any Hazardous Materials Claims and to have
it s reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall indemnify
and ho ld harmless Beneficiary and its boardmembers, supervisors, directors, officers, employees,
agents, successors and assigns from and against any lo ss, damage, cost, expense or liability
direct ly or indirect ly arising out of or attributable to the use, generatio n, storage, release,
threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about
the Property including without limitat io n: (a) all foreseeable consequentia l damages; (b) the
costs of any required or necessary repair, cleanup or detoxificat io n of the Property and the
preparation and implementation of any closure, remedial or other required plans; and (c) all
reasonable costs and expenses incurred by Beneficiary in connectio n with clauses (a) and (b),
including but not limited to reasonable attorneys' fees and consultant's fees. This
indemnificat io n 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 restrict io n of use of rentable space on the Property; (3) adverse effect on the
market ing 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, remediatio n, repair, removal, cleanup or detoxificatio n of the
Property and surrounding properties).
Wit hout 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 act io n, settlement,
863\83\852528.2 11
consent decree or compromise might, in Beneficiary's reasonable judgment, impairs the value of
the Beneficiary's securit y hereunder; provided, however, that Beneficiary's prior consent is not
necessary in the event that the presence o f 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 jurisdict io n; (ii) Trustor will or may be subjected to civil or
criminal sanct io ns or penalt ies if it fails to take a required actio n; (iii) Trustor establishes to the
reasonable sat isfact io n 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 informatio n (and the Trustor's response) concerning the
environmental condit io n of the Property as required by California Code of Civil Procedure
Section 726.5, and (ii) each representation and warrant y 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 warrant y) with respect to the environmental conditio n 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.
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 limit ing or in any way affect ing 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 o f 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 negligent ly 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 act ivit y 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 wit h any act io n co mmenced under this paragraph, including any act io n 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 specified in the
Loan Agreement unt il 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 fo llo wing the
conclusion of such act io n.
863\83\852528.2 12
ARTICLE 7
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default.
The fo llo wing are events of default ("Events of Default") follo wing the expiration of any
applicable notice and cure periods: (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 obligat io ns under the Loan Documents, including, without limitatio n, the
provisions concerning discriminat io n; (iii) failure to make any payment or observe or perform
any of Trustor's other covenants, agreements, or obligatio ns under any Secured Obligat io ns,
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
obligat io ns 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.
Section 7.2 Acceleration of Maturit y.
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
Obligat io ns are immediately due and payable, and no omission on the part of the Beneficiary to
exercise such option when entitled to do so will 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 wit hout regard to the adequacy of it s
securit y, enter upon the Property and take possession thereof (or any part thereof) and of any of
the Securit y, in it s own name or in the name of Trustee, and do any acts that it deems necessary
or desirable to preserve the value or marketabilit y of the Property, or part thereof or interest
therein, increase the income therefrom or protect the security thereof. The entering upon and
taking possessio n of the Securit y will not cure or waive any Event of Default or Notice of Sale
(as defined in Sect io n 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
possessio n of the Securit y, Beneficiary will be ent itled 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 act io n 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 declaratio n 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
863\83\852528.2 13
(d)Exercise all other rights and remedies provided herein, in the instruments
by which the Trustor acquires title to any Securit y, 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 additio nally secured hereby as Trustee
may require.
(a)Upon receipt of such 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 who le or in separate lots or parcels or items, as Trustee deems expedient and in
such order as it determines, unless specified otherwise by the Trustor according to California
Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful money of
the United States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but
without any covenant or warranty, express or implied. The recitals in such deed or any matters
of facts will be conclusive proof of the truthfulness thereof. Any person, including, without
limitation, Trustor, Trustee or Beneficiary, may purchase at such sale.
(b)After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of tit le in connect io n 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
Obligat io ns owed to Beneficiary under the Loan Documents; (iii) all other sums then secured
hereby; and (iv) the remainder, if any, to Trustor.
(c)Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretio n,
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 o f the Securit y or the interest of Trustor therein, may apply to any court having
jurisdict io n to appoint a receiver or receivers of the Security (or a part thereof), and Trustor
hereby irrevocably consents to such appointme nt and waives further notice of any applicat io n
therefor. Any such receiver or receivers will have all the usual powers and duties of receivers in
863\83\852528.2 14
like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided
herein, and will cont inue as such and exercise all such powers until the date of confirmation of
sale of the Securit y, unless such receivership is sooner terminated.
Section 7.6 Remedies Cumulat ive.
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 cumulat ive and concurrent and will be in addit io n to any other
right, power and remedy given hereunder or now or hereafter exist ing at law or in equit y.
Section 7.7 No Waiver.
(a)No delay or omission of the Beneficiary to exercise any right, power or
remedy accruing upon any Event of Default will exhaust or impair any such right, power or
remedy, or will 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 fro m time to time and as often as may be deemed expeditio us by the Beneficiary.
Beneficiary's express or implied consent to breach, or waiver of, any obligatio n of the Trustor
hereunder will not be deemed or construed to be a consent to any subsequent breach, or further
waiver, of such obligat io n 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,
irrespect ive of how long such failure continues, will not constitute a waiver by the Beneficiary of
it s right hereunder or impair any rights, power or remedies consequent on any Event of Default
by the Trustor.
(b)If the Beneficiary (i) grants forbearance or an extension of t ime fo r the
payment or performance of any Secured Obligatio n, (ii) takes other or addit io nal securit y 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, condit io ns or agreements in the Loan Documents,
(v) consents to the granting of any easement or other right affecting the Securit y, 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 obligat io n of the Trustor or any subsequent purchaser of the Securit y or any part thereof, or
any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor must any
such act or omissio n 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 Benefic iary has the power to (a) inst it ut e and maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Securit y and the rights of the
Beneficiary as may be unlawful or any violat io n of this Deed of Trust, (b) preserve or protect its
int erest (as described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or
compliance with any legislat io n or other governmental enactme nt , rule or order that may be
863\83\852528.2 15
unconstitutional or otherwise invalid, if the enforcement for compliance with such enact me nt ,
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, reorganizat io n, arrangement,
adjustment, composition or other proceedings affecting the Trustor, its creditors or its property,
the Beneficiary, to the extent permitted by law, will be ent it led 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 addit io nal 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 Obligat io ns or in proceedings against the Securit y, in
connection wit h the delivery, acceptance, performance, default, endorsement or guaranty of this
Deed of Trust.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Amendments.
This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only
by an instrument in writing signed by Beneficiary and Trustor.
Section 8.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all Secured Obligatio ns 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 cancellat io n 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 ent it led 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 communicatio n upon the
other party, such notice, demand or communicat io n mu st 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:
863\83\852528.2 16
County of Contra Costa
Department of Conservat io n and Development
Redevelopment Divisio n
2530 Arno ld Dr., Suite 190
Martinez, CA 94553
At tention: Deputy Director –Redevelopment
and (2) if intended for Trustor is to be addressed to:
BRIDGE Regional Partners, Inc.
345 Spear Street, Suite 700
San Francisco, CA 94105
At tention: President
Any notice, demand or communicatio n will be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed in the manner herein specified, on the
delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either
party may change its address at any time by giving written notice of such change to Beneficiary
or Trustor as the case may be, in the manner provided herein, at least ten (10) days prior to the
date such change is desired to be effective.
Section 8.4 Successors and Jo int Trustors.
Where an obligat io n created herein is binding upon Trustor, the obligatio n 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 obligat io n of the Trustor and such transferee. Where Trustor is more than
one ent it y or person, all obligat io ns of Trustor will be deemed to be a joint and several obligat io n
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 Invalidit y of Certain Provisio ns.
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 jurisdict io n, such illegalit y or invalidit y will not affect the balance of
the terms and provisio ns 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 Securit y, 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.
863\83\852528.2 17
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.
Section 8.10 Act io ns.
Trustor shall appear in and defend any act io n or proceeding purporting to affect the
Security.
Section 8.11 Subst it ution of Trustee.
Beneficiary may from time to time subst it ut e a successor or successors to any Trustee
named herein or acting hereunder to execute this Trust. Upon such appointme nt , and without
conveyance to the successor trustee, the latter will be vested with all tit le, powers, and duties
conferred upon any Trustee herein named or acting hereunder. Each such appointme nt and
subst it ut io n 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
appoint me nt of the successor trustee.
Section 8.12 Statute of Limitat io ns.
The pleading of any statute of limitatio ns as a defense to any and all obligat io ns 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 actio n or
proceeding in which Trustor, Beneficiary, or Trustee is a party unless brought by Trustee.
Section 8.14 Tax Credit Provisio ns.
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
fo reclosure (collect ively, "Foreclosure") with respect to the Securit y encumbered by this Deed of
Trust, the fo llo wing rule contained in 26 U.S.C. Section 42(h)(6)(E)(ii), as amended, applies:
863\83\852528.2 18
For a period of three (3) years from the date of Foreclosure, with respect to any unit that
had been regulated by the Regulatory Agreement with the California Tax Credit Allocatio n
Committee, (i) none of the tenants occupying those units at the time of Foreclosure may be
evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be
increased except as otherwise permitted under Section 42 of the Internal Revenue Code.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
Signature page
County Deed of Trust
863\83\852528.2
19
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first
above written.
TRUSTOR:
BRIDGE REGIONAL PARTNERS, INC., a California
nonprofit public benefit corporation
By:___________________________
Its:_____________________________
863\83\852528.2
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satis factory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the ent it y upon behalf o f which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
fo regoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________(seal)
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of sat is factory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the ent it y upon behalf o f which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
fo regoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________(seal)
A-1
863\83\852528.2
EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the State of California, County of Contra Costa, and is described as
fo llo ws:
863\83\823566.4 1
HOME LOAN AGREEMENT
(Woods Grove Apartments)
This HOME Loan Agreement (the "Agreement") is dated September 1, 2010, and is
between the County of Contra Costa, a polit ic al subdivisio n of the State of California (the
"Count y"), and BRIDGE Regional Partners, Inc., a California nonprofit public benefit
corporation (the "Borrower").
A. Defined terms used but not defined in these recitals are as defined in Article 1 of
this Agreement.
B.The County has received Home Invest me nt Partnerships Act funds from the
United States Department of Housing and Urban Development ("HUD") pursuant to the
Cranston-Go nzales Nat io nal Housing Act of 1990 ("HOME Funds"). The HOME Funds must be
used by the County in accordance with 24 C.F.R. Part 92.
C.The Borrower owns certain real property located at 850 East Leland Road in the
City of Pittsburg, County of Contra Costa, State of California, as more particularly described in
Exhibit A (the "Property"). The Borrower intends to rehabilitate the exist ing 80 unit mult ifamily
building and attendant improvements located on the Property for continued use as housing
affordable to very-lo w and low income households (the “Development”). The Development, as
well as any additional improvements on the Property, including all landscaping, roads and
parking spaces on the Property, are referred to as the "Improvements".
D.The County approved an allocat io n of Eight Hundred Thousand Dollars
($800,000) in HOME Funds on April 28, 2009, and an allocation of Five Hundred Thousand
Dollars ($500,000) in HOME Funds on March 23, 2010, for a total allocat io n of One Millio n
Three Hundred Thousand Dollars ($1,300,000) in HOME Funds for the Development (the "Total
HOME Funds Allo cation").
E.Borrower desires to borrow from the County and the Count y desires to lend to the
Borrower an Eight Hundred Thousand Dollar ($800,000) portion of the Total HOME Funds
Allocat io n (the "Loan"), to assist the Borrower in the replacement of the Development's hot
water system and the installat io n of water conserving landscaping. The Loan will be evidenced
by the Note and secured by the Deed of Trust.
F.The County has the authority to lend the Loan to the 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 authorit y to loan the
HOME Funds to provide affordable housing pursuant to 24 C.F.R. 92.205.
G.The Loan is to be applied toward the rehabilitation of the Development in order to
help achieve financial feasibility fo r the Development. The Development will increase the
supply of affordable rental housing for persons in Contra Costa County. Due to the assistance
provided Borrower pursuant to this Agreement, Borrower is required to designate eleven (11)
units in the Development as County-Assisted Units.
863\83\823566.4 2
H.The project underlying this Agreement is exempt from California Environmental
Qualit y Act (California Public Resources Code Section 21000 et seq.) requirements under the
class 1 categorical exempt io n set forth in 14 California Code of Regulat io ns (C.C.R.) Section
15301.
I.The project underlying this Agreement is categorically excluded from the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) requirements
under 24 C.F.R 58.35(a)(3).
The parties therefore agree as follo ws:
ARTICLE 1 DEFINITIONS AND EXHIBITS
Section 1.1 Definit io ns.
The fo llo wing terms have the follo wing meanings:
(a)"Agreement" means this HOME Loan Agreement.
(b)"Approved Development Budget" means the proforma development
budget, including sources and uses of funds, as approved by the Count y, and attached hereto and
incorporated herein as Exhibit B.
(c)"Approved Financing" means any loans or grants secured by the Borrower
and approved by the County for the purpose of financing the Development in additio n to the
Loan.
(d)"Bid Package" means the Borrower's proposed bid package to be made
available to potential bidders. The contents of the Bid Package are more particularly described
in Section 3.2.
(e)"Borrower" has the meaning set forth in the first paragraph of this
Agreement.
(f)"City" means the Cit y of Pittsburg, a municipal corporation.
(g)"Count y" has the meaning set forth in the first paragraph of this
Agreement.
(h)"Count y-Assisted Unit s" means the eleven (11) units whose occupancy
and rental charges are restricted pursuant to the Loan Documents.
(i)"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,
Chicago Title Co mpany, as trustee, and the County, as beneficiary, that will encumber the
Property to secure repayment of the Loan and performance of the covenants of the Loan
Documents. The form of the Deed of Trust will be provided by the Count y.
863\83\823566.4 3
(j)"Default Rate" has the meaning set forth in Sect io n 6.2(c).
(k)"Development" has the meaning set forth in Paragraph C of the Recitals.
(l)"Event of Default" has the meaning set forth in Section 6.1.
(m)"Hazardous Materials" has the meaning set forth in Section 4.8.
(n)"Hazardous Materials Claims" has the meaning set forth in Sectio n 4.8.
(o)"Hazardous Materials Law" has the meaning set forth in Section 4.8.
(p)"HOME" means Ho me Investment Partnerships Act Program funded
pursuant to the Cranston-Gonzales National Housing Act of 1990.
(q)"HOME Funds” has the meaning set forth in Paragraph B of the Recitals.
(r)“HOME Term” means the period beginning on the date of the execution of
the Regulatory Agreement and ending on the twentieth (20th) anniversary of the date of the
Regulatory Agreement.
(s)"HUD" has the meaning set forth in Paragraph B of the Recitals.
(t)"Loan" has the meaning set forth in Paragraph E of the Recitals.
(u)"Loan Documents" means this Agreement, the Note, the Regulatory
Agreement, and the Deed of Trust.
(v)"Market ing Plan" has the meaning set forth in Sectio n 3.8(a).
(w)"Note" means the Promissory Note that evidences Borrower's obligat io n to
repay the Loan.
(x)"Partnership" means the limited partnership antic ipated to be formed by
Borrower as part of the syndicat io n of the low income housing tax credits that will be generated
by the Development, in which Borrower or a wholly-controlled 501c3 affiliate of Borrower, or a
limited liabilit y co mpany whose manager is Borrower or a wholly-controlled 501c3 affiliate of
Borrower, will be the managing general partner.
(y)"Property" has the meaning set forth in Paragraph C of the Recitals.
(z)"Regulatory Agreement" means the Regulatory Agreement and
Declaration of Restrict ive Covenants, of even date herewith, between the Count y and the
Borrower related to the Loan, to be recorded against the Property.
863\83\823566.4 4
(aa)Retention Amount" means Ten Thousand Dollars ($10,000) of the Loan,
the disbursement of which is described in Sectio n 2.7.
(bb)"Tenant" means the tenant household that occupies a unit in the
Development.
(cc)"Term" means the term of this Agreement which expires on the date fifty-
five (55) years fro m the date first listed above which is September 1, 2065, unless sooner
terminated pursuant to the terms of this Agreement.
(dd)"Total HOME Funds Allocat io n" has the meaning set forth in Paragraph D
of the Recitals.
(ee)"Transfer" has the meaning set forth in Section 4.14.
Section 1.2 Exhibit s.
The fo llo wing exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A:Legal Descript io n of the Property
Exhibit B:Approved Development Budget
ARTICLE 2 LOAN PROVISIONS
Section 2.1 Loan.
The County shall lend to the Borrower the Loan for the purposes set forth in Section 2.3
of this Agreement. Borrower's obligatio n to repay the Loan is evidenced by the Note. The Loan
represents a portion of the Total HOME Funds Allocation. Funding of the balance of the Total
HOME Funds Allo cation may be approved or denied in the County's sole discret io n and is not
governed by this Agreement.
Section 2.2 Interest.
(a)Subject to the provisions of Subsect io n (b) below, simple interest will
accrue on the outstanding principal balance of the Loan at a per annum rate of interest equal to
three percent (3%), commencing on the date of disbursement.
(b)Upon the occurrence of an Event of a Default, interest on the Loan will
begin to accrue, beginning on the date of such occurrence and continuing until the date the Loan
is repaid in full or the Event of Default is cured, at the lesser of ten percent (10%), compounded
annually, and the highest rate permitted by law.
Section 2.3 Use of Loan Funds.
(a)The Borrower shall use the Loan to fund the rehabilitatio n of the
Development consistent with the Approved Development Budget.
863\83\823566.4 5
(b)The Borrower may not use the Loan proceeds for any other purposes
without the prior written consent of the County.
Section 2.4 Security.
(a)Borrower shall secure its obligat io n to repay the Loan, as evidenced by the
Note, by execut ing the Deed of Trust, and causing or permitting it to be recorded as a lien against
the Property.
Section 2.5 Subordination.
Any agreement by the Count y to subordinate the Deed of Trust and/or Regulatory
Agreement to Approved Financing (in each case, a "Senior Loan"), will be subject to the
satisfact io n of the following condit io ns:
(a)All o f the proceeds of the proposed Senior Loan, less any transact io n
costs, are used to provide acquisit io n, construction and/or permanent financing for the
Development.
(b)The proposed lender of a Senior Loan (each a "Senior Lender") is a state
or federally chartered financial inst it ution, a nonprofit corporation or a public entit y that is not
affiliated with Borrower or any of Borrower's affiliates, other than as a depositor or a lender.
(c)Borrower demonstrates to the County's satis fact io n that subordinat io n of
the Deed of Trust and the Regulatory Agreement is necessary to secure adequate acquisition,
construction, rehabilitatio n 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 informat io n reasonably required by the Count y, evidence demo nstrating
that the proposed amount of the Senior Loan is necessary to provide adequate acquisitio n,
construction, rehabilitatio n and/or permanent financing to ensure the viabilit y of the
Development, and adequate financing for the Development would not be available without the
proposed subordinat io n.
(d)The subordinat io n agreement(s) is structured to minimize the risk that the
Deed of Trust and the Regulat ory Agreement will be ext inguished as a result of a foreclosure by
the Senior Lender or other holder of the Senior Loan. To satisfy this requirement, the
subordinat io n agreement must provide the County with adequate rights to cure any defaults by
Borrower, including: (i)providing the Count y or its successor with copies of any notices of
default at the same time and in the same manner as provided to Borrower; and (ii)providing the
County with a cure period of at least sixt y (60) days to cure any default .
(e)The subordinat io n(s) of the Loan is effect ive only during the original term
of the Senior Loan and any extension of its term that is approved in writ ing by the County.
(f)The subordinat io n does not limit the effect of the Deed of Trust and the
Regulatory Agreement before a foreclosure, nor require the consent of the Senior Lender prior to
the County exercising any remedies available to the County under the Loan Documents.
863\83\823566.4 6
Upon a determinat io n by the Count y's Deput y Director –Redevelopment that the
conditions in this Sect io n have been sat is fied, the Deputy Director –Redevelopment or his/her
designee will be authorized to execute the approved subordination agreement without the
necessit y of any further action or approval.
Section 2.6 Conditions Precedent to Disbursement of Loan Funds.
The maximum amount of funds to be disbursed pursuant to this Sect io n 2.6 may not
exceed the amount of the Loan less the Retentio n Amount. The County is not obligated to make
any disbursements of Loan funds for construction of the Development or to take any other action
under the Loan Documents unless the follo wing condit io ns precedent are satisfied prior to each
disbursement of Loan funds:
(a)There exists no Event of Default nor any act, failure, omissio n or
condition that would const it ut e an Event of Default under this Agreement;
(b)The Borrower holds tit le to the Property or is acquiring title
simultaneously with the disbursement of the Loan proceeds;
(c)There exists no material adverse change in the financial conditio n o f
Borrower from that shown by the financial statements and other data and informatio n fur nished
by Borrower to the County prior to the date of this Agreement;
(d)Borrower has delivered to the County a copy of a corporate resolut io n
authorizing Borrower's execut io n of the Loan Documents;
(e)Borrower has caused to be executed and delivered to the County the Loan
Documents and any other instruments and policies required under the Loan Documents;
(f)A title insurer reasonably acceptable to the County is uncondit io nally and
irrevocably commit ted to issuing an LP-10 ALTA Lender's Policy of t it le insurance insuring the
priority of the Deed of Trust in the amount of the Loan, subject only to such except io ns and
exclusio ns as may be reasonably acceptable to the County, and containing such endorsements as
the County may reasonably require. The Borrower shall provide whatever documentation
(including an indemnificat io n 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 priorit y to any mechanics
liens in connect io n 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;
(g)The Deed of Trust and the Regulatory Agreement have been recorded
against the Property in the Office of the Recorder of the County of Contra Costa;
(h)Borrower has furnished the County with evidence of the insurance
coverage meet ing the requirements of Sect io n 4.15 below.
(i)The County has determined the undisbursed proceeds of the Loan,
together with other funds or firm commit ments for funds that the Borrower has obtained in
connection wit h the Development, are not less than the amount that the County determines is
863\83\823566.4 7
necessary to pay for rehabilitat io n of the Development and to satisfy all of the covenants
contained in this Agreement and the Regulatory Agreement;
(j)Borrower has obtained all permits and approvals necessary for the
rehabilitat io n of the Development, as required by Section 3.1,and County has received a copy of
the building permit required to rehabilitate the Development to the extent a building permit is
required by the Cit y (required for disbursements for construction costs only);
(k)The County has received and approved the Bid Package for the
subcontractors for the rehabilitat io n of the Develo pment, as required pursuant to Section 3.2
below;
(l)The County has received and approved the general contractor's
construction contract that the Borrower has entered or proposed to enter for rehabilitat io n of the
Development as required pursuant to Section 3.3 below;
(m)The County has received copies of labor and material (payment) bonds
and performance bonds as required pursuant to Section 3.4 below; and
(n)The County has received a written draw request from the Borrower,
including certificatio n that the condit io n set forth in Section 2.6(a) continues to be satisfied, and
setting forth the proposed uses of funds consistent with the Approved Development Budget, the
amount of funds needed, and, 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 wit h improvements on the Property, the written request must be accompanied by (i)
certification by the Borrower's architect reasonably acceptable to the County that the work for
which disbursement is requested has been comp leted (although the Count y reserves the right to
inspect the Property and make an independent evaluation); and (ii) lien releases and/or
mechanics lien t it le insurance endorsements reasonably acceptable to the County.
Section 2.7 Conditions Precedent to Disbursement of Retent io n.
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 the Borrower setting
fo rth (i) the income, household size, and ethnicit y of Tenants of the County-Assisted Units, (ii)
and the unit size, rent amount and utility allo wance for all Count y-Assisted Units.
(b)The County has received an audited final budget for the Development
fro m the Borrower showing all uses and sources.
(c)The County has received from the Borrower copies of the final permit
sign-offs fo r the Development.
(d)The County has received for the Borrower current evidence of the
insurance coverage meeting the requirements of Section 4.15 below.
863\83\823566.4 8
(e)The County has received from Borrower a form of lease and Marketing
Plan for the County-Assisted Units.
(f)The County has received from Borrower evidence of market ing for any
vacant County-Assisted Unit in the Development such as copies of flyers, list of media ads, list
of agencies and organizations receiving informatio n on availabilit y of such units, as applicable.
(g)The County has received from Borrower all relevant contract activit y
informat io n, including compliance with Sectio n 3 and MBE/WBE requirements.
(h)If the Borrower was required to comply with relocation requirements, the
County has received from the Borrower evidence of co mp liance with all applicable relocatio n
requirements.
(i)The County has received from Borrower a copy of the management
agreement and contact informat io n fo r the property manager of the Development and the name
and phone number of the on-site property manager.
(j)If the Borrower is required to pay prevailing wages under the Davis-Bacon
Act (40 U.S.C. 3141-3148), the County has received confirmatio n that the Borrower has
submitted all certified payrolls to the Cit y, and any identified payment issues have been resolved,
or the Borrower is working diligently to resolve any such issues.
(k)The County has received a written draw request from the Borrower,
including certificatio n that the condit io n set forth in Section 2.6(a) continues to be satisfied, and
setting forth the proposed uses of funds consistent wit h the Approved Development Budget, and,
where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred.
Borrower shall apply the disbursement for the purpose(s) requested.
Section 2.8 Repayment Schedule.
(a)Special Definit io ns. The fo llo wing definit io ns will apply for the purposes
of this Sect io n 2.8:
(i)"Annual Operat ing Expenses" for each calendar year means the
fo llo wing costs reasonably and actually incurred for operation and maintenance of the
Development as confirmed by an annual independent audit performed by a certified public
accountant using generally accepted accounting principles:
(1) property taxes and assessments imposed on the
Development;
(2) debt service current ly due on a non-optional basis
(excluding debt service due from residual receipts or surplus cash of the Development)
on loans associated with development of the Development and approved by the Count y;
863\83\823566.4 9
(3) 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;
(4) property management fees and reimbursements, not to
exceed fees and reimbursements which are standard in the industry and pursuant to a
management contract approved by the County;
(5) premiums for property damage and liabilit y insurance;
(6) ut ilit y services not paid for direct ly by tenants,
including water, sewer, and trash collection;
(7) ma int enance and repair;
(8) any annual license or certificate of occupancy fees
required for operation of the Development;
(9) securit y services;
(10) advertising and market ing;
(11) cash deposited into reserves for capital replacements
of the Development in an amount not to exceed six tenths of one percent (.6%) of the
total development cost of the Development;
(12) cash deposited into an operating reserve in an amount
not to exceed 3% of Annual Operating Expenses or the amount required in connectio n
with the permanent financing (or any greater amount approved in writ ing by the County)
but with the operating reserve capped at six (6) months gross rent from the Development
(as such rent may vary from time to time);
(13) extraordinary operating costs specifically approved in
writing by the Count y;
(14) payments of deductibles in connectio n 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 Operat ing Expenses do not include the following: asset management fee,
partnership management fee, depreciation, amortization, depletio n or other non-cash
expenses, any amount expended from a reserve account, and any capital cost associated
with the Development, as determined by the accountant for the Borrower.
863\83\823566.4 10
(ii)"Borrowers' Share of Residual Receipts" means fifty percent (50%)
of the Residual Receipts.
(iii)"Gross Revenue" for each calendar year means all revenue,
inco me, receipts, and other consideratio n actually received from operation and leasing of the
Development. Gross Revenue includes, but is not limited to:
(1) all rents, fees and charges paid by tenants;
(2) Section 8 payments or other rental subsidy payments
received for the dwelling units;
(3) deposit s forfeited by tenants;
(4) all cancellat io n fees;
(5) price index adjust me nt s;
(6)and any other rental adjust me nt s to leases or rental
agreements;
(7) net proceeds fro m vending and laundry room
machines;
(8) the proceeds of business interruption or similar
insurance and not paid to senior lenders;
(9) the proceeds of casualt y insurance not used to rebuild
the Development and not paid to senior lenders; and
(10) co ndemnat io n awards for a taking of part or all of the
Development for a temporary period.
Gross Revenue does not include tenants' securit y deposits, loan proceeds, capital
contributions or similar advances.
(iv)"Lenders' Share of Residual Receipts" means fift y percent (50%)
of the Residual Receipts.
(v)"Residual Receipts" for each calendar year mean the amount by
which Gross Revenue (as defined above) exceeds Annual Operating Expenses (as defined
above).
(b)Annual Payments. Commencing on May 1 of the year follo wing the first
full year after execut io n of this Agreement, and on May 1 of each year thereafter for the Term of
the Loan, Borrower shall make repayments of the outstanding principal and accrued interest on
the Loan equal to the Lenders' Share of Residual Receipts. The County shall credit such
payments first against accrued interest and then against outstanding principal. Borrower shall
863\83\823566.4 11
submit to County a report of Residual Receipts (including an independent auditor's report
regarding the auditor's review of Annual Operating Expenses) at the same time it submits its
annual payment. The Borrower shall provide the County wit h any documentation reasonably
requested by the County to substant iat e the Borrower’s determinat io n of Residual Receipts.
(c)Payment in Full. Borrower shall pay all principal and accrued interest on
the Loan, in full, on the earliest to occur of (i) the date of any Transfer not authorized by the
County, (ii) the date of an Event of Default, and (iii) the expiration of the Term.
(d)Prepayment. Borrower may prepay the Loan at any t ime wit hout premium
or penalt y. However, the Regulatory Agreement and the Deed of Trust will remain in effect for
the ent ir e Term, regardless of any prepayment.
Section 2.9 Non-Recourse.
Except as provided below, neit her the Borrower, nor any partner of the Borrower, has any
direct or indirect personal liability fo r payment of the principal of, and interest on, the Loan or
the performance of the covenants of the Borrower under the Deed of Trust. Following
recordation of the Deed of Trust, the sole recourse of the County with respect to the principal of,
or interest on, the Note and defaults by Borrower in the performance of its covenants under the
Deed of Trust 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 securit y fo r the Note, or impairs the right
of County to assert the unpaid principal amount of the Note as demand for money within the
meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any
successor provisio n thereto. The foregoing limitation of liabilit y is int ended to apply only to the
obligat io n to repay the principal of, and payment of interest on the Note and the performance of
the Borrower's obligat io ns under the Deed of Trust. Except as hereafter set forth; nothing
contained herein is intended to relieve the Borrower of its obligatio n to indemnify the County
under Sections 3.7, 4.7, 4.8, and 7.4 of this Agreement, or liability fo r (i) 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 result ing fro m condemnat io n or the exercise of the power of eminent domain
or by reason of damage, loss or destruction to any portion of the Property.
ARTICLE 3 REHABILITATION OF THE DEVELOPMENT
Section 3.1 Permits and Approvals.
Borrower must obtain all permit s and approvals necessary for the rehabilitat io n of the
Development no later than September 30, 2010, or such later date that the County may approve,
or the County, at its option, and with thirty (30) days written notice and opportunity to cure, may
declare Borrower in default hereunder.
863\83\823566.4 12
Section 3.2 Bid Package.
(a)Not later than thirt y (30) days prior to the Borrower's proposed date for
advert is ing the Bid Package, the Borrower shall submit to the County Depart me nt of
Conservat io n and Development -Redevelopment Divisio n a copy of the Borrower's proposed
Bid Package that the Borrower shall ut ilize to select the subcontractors for the Development.
The Bid Package is to include the follo wing: (i) a copy of the proposed construction contract, (ii)
an invit ation to bid, (iii) a form of a 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 received
fro m each bidder, and (iv) all Construction Plans. As used in this Agreement, "Construction
Plans" means all construction documentation upon which Borrower and Borrower's contractor, if
any, relies on in rehabilit ating all the Improvements on the Property (including the units in the
Development, landscaping, parking, and commo n areas) and includes, but is not limit ed to, final
architectural drawings, landscaping plans and specificatio ns, final elevations, building plans and
specifications (also known as "working drawings").
(b)The County Depart me nt of Conservat io n and Development -
Redevelopment Divisio n shall, if the Bid Package submitted conforms to the provisions of this
Agreement, approve in writ ing the Bid Package. Unless rejected by the County Department of
Conservat io n and Development -Redevelopment Divisio n fo r its failure to comply with the
fo regoing requirements within fifteen (15) days after receipt by the Count y, the Bid Package will
be deemed accepted.
(c)If rejected by the Count y Department of Conservatio n and Development -
Redevelopment Divisio n in who le or in part, Borrower shall submit a new or a corrected Bid
Package within fift een (15) days after notificat io n of the County's reject io n and the reasons
therefor. The County will then have fifteen (15) days to review and approve Borrower's new or
corrected Bid Package. The provisions of this Sectio n relat ing to time periods for approval,
reject io n, or resubmissio n of a new or corrected Bid Package continues to apply until the Bid
Package has been approved, or is deemed approved by the Count y Department of Conservation
and Development -Redevelopment Divisio n, and Borrower may not publish the Bid Package
unt il the Count y Department of Conservat io n and Development -Redevelopment Divisio n has
approved the Bid Package (or the Bid Package has been deemed approved pursuant to this
Section).
Section 3.3 Construction Contract.
(a)Not later than thirt y (30) days prior to the proposed commencement of
rehabilitat io n of the Development, the Borrower shall submit to the County for its approval 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 the
Borrower enters for rehabilitat io n of the Development is to provide that at least ten percent
(10%) of the costs incurred will be payable only upon completion of the rehabilitat io n, subject to
early release of retention for specified subcontractors upon approval by the Count y. The
construction contract will include all applicable HOME requirements set forth in Section 4.7
below. The County's approval of the construction contract may not be deemed to constitute
863\83\823566.4 13
approval of or concurrence with any term or condition of the construction contract except as such
term or condit io n may be required by this Agreement.
(b)Upon receipt by the County of the proposed construction contract, the
County shall prompt ly review same and approve or disapprove it within ten (10) working days.
If the construction contract is not approved by the County, the County shall set forth in writing
and notify the Borrower of the County's reasons for withhold ing such approval. The Borrower
shall thereafter submit a revised construction contract for County approval, which approval is to
be granted or denied in ten (10) working days in accordance with the procedures set forth above.
Any construction contract executed by the Borrower for the Development is to be in the form
approved by the Count y.
Section 3.4 Construction Bonds.
Prior to commencement of the rehabilitat io n of the Development, the Borrower shall
deliver to the County copies of labor and material bonds and performance bonds for the
rehabilitat io n of the Development in an amount equal to one hundred percent (100%) of the
scheduled cost of the rehabilitat io n of the Development. Such bonds must name the County as a
co-obligee.
Section 3.5 Commencement of Rehabilitatio n.
Borrower shall cause the commencement of rehabilitatio n of the Development no later
than September 30, 2010 or such later date that the County approves.
Section 3.6 Complet io n of Rehabilitat io n.
Borrower shall diligent ly prosecute rehabilitat io n of the Development to complet io n, and
shall cause the complet io n of the rehabilitat io n of the Development no later than December 31,
2010, or such later date that the County approves.
Section 3.7 Rehabilitat io n Pursuant to Plans and Laws; Prevailing Wages.
(a)Borrower shall rehabilitate the Development in conformance with the
plans and specificat io ns approved by the City's Building Inspection Depart me nt . Borrower shall
notify the Count y in a timely manner of any changes in the work required to be performed under
this Agreement, including any addit io ns, changes, or delet io ns to the plans and specificatio ns
approved by the Count y. A written change order authorized by the County must be obtained
before any of the follo wing changes, addit io ns, or delet io ns in work for the Development may be
performed: (i) any change in the work the cost of which exceeds Ten Thousand Dollars
($10,000); or (ii) any set of changes in the work the cost of which cumulatively exceeds Fift y
Thousand Do llars ($50,000) or ten percent (10%) of the Loan amount, whichever is less; or (iii)
any material change in building materials or equipment, specifications, or the structural or
architectural design or appearance of the Development as provided for in the plans and
specifications approved by the Count y. Consent to any additions, changes, or delet io ns to the
work do not relieve or release Borrower from any other obligat io ns under this Agreement, or
relieve or release Borrower or its surety from any surety bond.
863\83\823566.4 14
(b)Borrower shall cause all work performed in connection with the
Development to be performed in comp liance wit h:
(i)all applicable laws, ordinances, rules and regulatio ns o f federal,
state, county or municipal governments or agencies now in force or that may be enacted
hereafter, including wit hout limitat io n and to the extent applicable, the prevailing wage
provisions of the federal Davis-Bacon Act and implement ing rules and regulations, as further set
fo rth in subsect io n (c) below, and state prevailing wages pursuant to California Labor Code
Section 1770 et seq., and the regulat io ns pursuant thereto, as further set forth in subsectio n (d)
below;
(ii)the property standards set out in 24 C.F.R. Section 5.701 et seq.
and 24 C.F.R. Section 92.251; and
(iii)all direct io ns, rules and regulat io ns of any fire marshal, healt h
officer, building inspector, or other officer of every governmental agency now having or
hereafter acquiring jurisdict io n. The work will proceed only after procurement of each permit,
license, or other authorizatio n that may be required by any governmental agency having
jurisdict io n, and Borrower shall be responsible to the County fo r the procurement and
maintenance thereof, as may be required of Borrower and all ent it ies engaged in work on the
Development.
(c)The Borrower shall cause rehabilitatio n of the Development to be in
compliance with the prevailing wage requirements of the federal Davis-Bacon Act (40 U.S.C.
3141-3148). The Borrower shall indemnify, ho ld harmless and defend (with counsel reasonably
acceptable to the County) the County against any claim for damages, compensat io n, fines,
penalt ies or other amounts arising out of the failure or alleged failure of any person or entity
(including the Borrower, its contractor and subcontractors) to pay prevailing wages as
determined pursuant to the prevailing wage provisions of the federal Davis-Bacon Act and
implement ing rules and regulat io ns in connect io n with the rehabilitation of the Development or
any other work undertaken or in connectio n with the Property. The requirements in this
Subsection survive repayment of the Loan and the reconveyance of the Deed of Trust.
(d)The Borrower shall comp ly with, and cause its contractors to comply with,
California Labor Code Section 1720 et seq. requiring the payment of prevailing wages, and
California Labor Code Sections 1777.5 et seq. regarding the emplo yment of apprent ices, and the
implement ing regulat io ns of the Department of Industrial Relatio ns (the "DIR"). The Borrower
shall and shall cause the contractor and subcontractors to comply with the other applicable
provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and implement ing
regulat io ns of the DIR. The Borrower shall and shall cause the contractor and subcontractors 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 apprent ices have
been emplo yed are required by California Labor Code Section 1777.5 et seq. Copies of the
currently applicable current per diem prevailing wages are available from DIR. During the
rehabilitat io n of the Development, Borrower shall or shall cause the contractor to post at the
Property the applicable prevailing rates of per diem wages. The Borrower shall indemnify, hold
harmless and defend (with counsel reasonably acceptable to the County) the County against any
claim for damages, compensat io n, fines, penalt ies or other amounts arising out of the failure or
863\83\823566.4 15
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 apprent ic es pursuant to California Labor Code Section 1777.5 et seq., and implement ing
regulat io ns of the DIR or to comply wit h the other applicable provisions of California Labor
Code Sections 1720 et seq., 1777.5 et seq., and the implement ing regulations of the DIR in
connection wit h the rehabilit ation of the Development or any other work undertaken or in
connection wit h the Property. The requirements in this Subsect io n survive the repayment of the
Loan, and the reconveyance of the Deed of Trust.
Section 3.8 Marketing Plan.
(a)Wit hin thirt y (30) days of execut io n of this Agreement Borrower shall
submit to the County for approval its plan for marketing the Development to income-eligible
househo lds as required pursuant to the Regulatory Agreement, including information on
affirmat ive marketing efforts and compliance with fair housing laws, and informat io n required
under 24 C.F.R. Section 92.351(a) (the "Marketing Plan").
(b)Upon receipt of the Marketing Plan, the County will promptly review the
Marketing Plan and will approve or disapprove it within fift een (15) days after submission. If
the Marketing Plan is not approved, Borrower shall submit a revised Marketing Plan wit hin
fifteen (15) days. If the County does not approve the revised Market ing Plan, Borrower will be
in default hereunder.
Section 3.9 Equal Opportunity.
During the rehabilitat io n of the Development, discriminat io n on the basis o f race, color,
creed, religio n, 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 3.10 Minority and Wo me n-Owned Contractors.
Borrower shall use its best efforts to afford minority-owned and women-owned business
enterprises the maximum pract icable opportunit y 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 rehabilitat io n
of the Development. A listing of minorit y owned and wo me n 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 as requested.
Section 3.11 Progress Reports.
Unt il such time as Borrower has received a certificate of occupancy or equivalent sign-
off fro m the City 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 3.15 below.
863\83\823566.4 16
Section 3.12 Construction Responsibilit ies.
(a)Borrower is responsible for the coordinat io n and scheduling of the work to
be performed so that commencement and completion of the rehabilitatio n of the Development
will take place in accordance with this Agreement.
(b)Borrower is so le ly responsible for all aspects of Borrower's conduct in
connection wit h the Development, including (but not limited to) the qualit y and suitability of the
plans and specificat io ns, the supervisio n of construction work, and the qualificat io ns, financial
condition, and performance of all architects, engineers, contractors, subcontractors, suppliers,
consultants, and property managers. Any review or inspect io n undertaken by the Count y with
reference to the Development is solely for the purpose of determining whether Borrower is
properly discharging its obligatio ns to the County, and may not be relied upon by Borrower or by
any third parties as a warrant y or representation by the County as to the qualit y of the design or
rehabilitat io n of the Development.
Section 3.13 Mechanics Liens, Stop Notices, and Notices of Complet io n.
(a)If any claim o f lien is filed against the Property or a stop notice affect ing
the Loan is served on the County or any other lender or other third party in connect io n with the
Development, then Borrower shall, within twent y (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 suret y 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 addit io n to any other right or remedy, the Count y
may (but is under no obligat io n to) discharge such lien, encumbrance, charge, or claim at
Borrower's expense. Alternately, the County ma y require Borrower to immediately deposit with
the County the amount necessary to satisfy such lien or claim and any costs, pending resolut io n
thereof. The County may use such deposit to satis fy any claim or lien that is adversely
determined against Borrower.
(c)Borrower shall file a valid notice of cessation or notice of comp let io n
upon cessat io n of construction work on the Develo pment for a continuous period of thirty (30)
days or more, and take all other reasonable steps to forestall the assertion of claims of lien
against the Property. Borrower authorizes the County, but the County has no obligat io n, to
record any notices o f complet io n 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 3.14 Inspect io ns.
Borrower shall permit and facilitate, and shall require its contractors to permit and
facilitate, observat io n and inspect io n at the Develo pment by the Count y and by public authorities
during reasonable business hours for the purposes of determining compliance with this
Agreement.
863\83\823566.4 17
Section 3.15 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 of the date Borrower
receives informat io n indicat ing 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.
ARTICLE 4 LOAN REQUIREMENTS
Section 4.1 Match Requirement.
The Borrower shall ensure that the Loan is matched with a minimum of Two Hundred
Thousand Do llars ($200,000) in other, non-federal sources, pursuant to and eligible under
applicable HOME regulations.
Section 4.2 Financial Account ing and Post-Co mp let io n Audit s.
No later than sixt y (60) days following complet io n of rehabilitat io n of the Development,
Borrower shall provide to County a financial account ing of all sources and uses of funds for the
Development. No later than one hundred fifty (150) days fo llo wing complet io n of rehabilitat io n
of the Development, Borrower shall submit an audited financial report showing the sources and
uses of all funds ut ilized for the Development.
Section 4.3 Annual Operat ing Budget Audited Financial Statements.
At the beginning of each year of the Term, Borrower shall provide to the County an
annual budget for the operation of the Development. Unless rejected by the County in writ ing
within fift een (15) days after receipt of the budget, the budget will be deemed accepted. If
rejected by the Count y in who le or in part, Borrower shall submit a new or corrected budget
within thirt y (30) calendar days of notification of the Count y's reject io n and the reasons therefor.
The provisions of this Sect io n relat ing to time periods for resubmission of new or corrected
budgets will cont inue to apply unt il such budget has been approved by the County.
Section 4.4 Informat io n.
Borrower shall provide any informatio n reasonably requested by the Count y in
connection wit h the Development, including (but not limited to) any informat io n required by
HUD in connect io n with Borrower's use of the Loan funds.
Section 4.5 Records.
(a)The Borrower shall keep and maintain at the Development, or elsewhere
with the County's written consent, full, complete and appropriate books, record and accounts
863\83\823566.4 18
relat ing to the Development, including all such books, records and accounts necessary or prudent
to evidence and substant iat e in full detail Borrower's calculatio n of Residual Receipts, and
disbursements made from Residual Receipts in compliance with Section 2.8(b) of this
Agreement. Books, records and account s relat ing to Borrower's compliance wit h the terms,
provisions, covenants and condit io ns of this Agreement are to be kept and maintained in
accordance with generally accepted accounting principles consistently applied, and are to be
consistent with requirements of this Agreement. All such books, records, and accounts are to be
open to and available for inspectio n and copying by HUD, the County, its auditors or other
authorized representatives at reasonable intervals during normal business hours. Copies of all
tax returns and other reports that Borrower may be required to furnish to any governmental
agency are to be open for inspect io n by the County at all reasonable times at the place that the
books, records and accounts of the Borrower are kept. The Borrower shall preserve such records
fo r a period of not less than five (5) years after the creation of such records in compliance with
all HUD records and accounting requirements including. If any litig ation, claim, negotiation,
audit except io n, monitoring, inspection or other action relat ing to the use of the Loan is pending
at the end of the record retention period stated herein, then the Borrower shall retain the records
unt il such action and all related issues are resolved. The records are to include all invo ices,
receipts, and other documents related to expenditures from the Loan funds. Borrower shall cause
records to be accurate and current and in such a form as to allow the County to comply with the
recordkeeping requirements contained in 24 C.F.R. 92.508. Such records are to include but are
not limited to:
(i)Records providing a full descriptio n of the activit ies undertaken
with the use of the Loan funds;
(ii)Records demonstrating comp liance wit h the HUD property
standards contained in 24 C.F.R. 92.251, and the lead based paint requirements contained
in 24 C.F.R. 92.355;
(iii)Records demonstrating comp liance wit h the HOME tenant
select io n, affordabilit y and income requirements;
(iv)Records documenting comp liance wit h the fair housing, equal
opportunit y, and affirmat ive fa ir market ing requirements;
(v)Records demonstrating comp liance wit h applicable relocat io n
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;
(vi)Records demonstrating that tenant leases comp ly with the HOME
Requirements;
(vii)Records demonstrating comp liance wit h MBE/WBE requirements;
(viii)Records demonstrating comp liance wit h 24 C.F.R. Part 135 which
implements section 3 of the Housing Development Act of 1968,
863\83\823566.4 19
(ix)Records demonstrating comp liance wit h la bor requirements,
including certified payrolls fro m the Borrower's general contractor evidencing that
applicable prevailing wages have been paid;
(x)Financial records as required by 24 C.F.R. Section 92.505, and
OMB Circular A-110.
(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.
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. The Borrower shall also follo w audit requirements of the Single
Audit Act and OMB Circulars A-122 and 110, and as set forth in 24 C.F.R. 506.
(b)In addit io n, the County or any designated agent or employee of the Count y
at any time is entit led to audit the Residual Receipts, disbursements made from Residual
Receipts in compliance with Section 2.8(b), and all of Borrower's books, records, and accounts
pertaining thereto. Such audit is to be conducted during normal business hours at the principal
place of business of Borrower and other places where records are kept. Immediately after the
complet io n of an audit, the County shall deliver a copy of the results of the audit to Borrower. If
it is determined as a result of such audit that there has been a deficiency in a loan repayment to
the County, then such deficiency will beco me immediately due and payable wit h int erest at the
Default Rate set forth in this Agreement, determined as of and accruing from the date that said
payment should have been made. In additio n, if the auditor's statement for any Development
fiscal year is fo und to have understated Residual Receipts by more than five percent (5%) and
the County is ent it led to any addit io nal Loan repayment as a result of said understatement, then
the Borrower shall pay, in addition to the interest charges referenced above,all o f the County's
reasonable costs and expenses connected with any audit or review of the Borrower's accounts
and records.
Section 4.7 HOME Requirements.
(a)Borrower shall co mp ly with all applicable laws and regulat io ns governing
the use of the HOME Funds, as set fo rth in 24 C.F.R. Part 92 et. seq.,including but not limited to
the requirements of the Regulatory Agreement. In the event of any conflict between this
Agreement and applicable laws and regulatio ns governing the use of the Loan funds, the
applicable laws and regulations govern. During the HOME Term, these requirements are federal
requirements, implemented by the Count y; thereafter, these requirements are deemed local
County requirements.
(b)The laws and regulat io ns governing the use of the Loan funds include (but
are not limit ed to) the fo llo wing:
863\83\823566.4 20
(i)Environmental and Historic Preservat io n. 24 C.F.R. Part 58,
which prescribes procedures for compliance with the Natio nal Environmental Policy Act of 1969
(42 U.S.C. 4321-4361), and the addit io nal laws and authorit ie s listed at 24 C.F.R. Section 58.5.
(ii)Applicabilit y of OMB Circulars. The applicable policies,
guidelines, and requirements of OMB Circulars Nos. A-87, A-102, Revised, A-110, A-122, and
A-133.
(iii)Debarred, Suspended or Ineligible Contractors. The prohibit io n on
the use of debarred, suspended, or ineligible contractors set forth in 24 C.F.R. Part 24.
(iv)Civil Rights, Housing and Communit y Development, and Age
Discriminat io n Acts.The Fair Housing Act (42 U.S.C. 3601 et seq.) and implement ing
regulat io ns at 24 C.F.R. Part 100; Tit le VI of the Civil Rights Act of 1964 as amended; Title VIII
of the Civil Rights Act of 1968 as amended; Sectio n 104(b) and Sect io n 109 of Tit le I of the
Housing and Co mmunit y Development Act of 1974 as amended; Section 504 of the
Rehabilitat io n Act of 1973 (29 USC 794, et seq.); the Age Discriminat io n Act of 1975 (42 USC
6101, et seq.); Executive Order 11063 as amended by Execut ive Order 12259 and implement ing
regulat io ns at 24 C.F.R. Part 107; Executive Order 11246 as amended by Execut ive Orders
11375, 12086, 11478, 12107; Executive Order 11625 as amended by Execut ive Order 12007;
Execut ive Order 12432; Execut ive Order 12138 as amended by Execut ive Order 12608.
(v)Lead-Based Paint. The requirement of the Lead-Based Paint
Poisoning Prevent io n Act, as amended (42 U.S.C. 4821 et seq.), the Resident ia l Lead-Based
Paint Hazard Reduction Act (42 U.S.C. 4851 et seq.), and implement ing regulat io ns at 24 C.F.R.
Part 35.
(vi)Relocation. if applicable, the requirements of the Uniform
Relocation Assistance and Real Property Acquisit ion Policies Act of 1970 (42 U.S.C. 4601, et
seq.), and implement ing regulations at 49 C.F.R. Part 24; Section 104(d) of the Housing and
Communit y Development Act of 1974 and implement ing regulat io ns at 24 C.F.R. Part 42;24
C.F.R. 92.353; and California Government Code Section 7260 et seq. and implement ing
regulat io ns at 25 California Code of Regulations Sections 6000 et seq. If and to the extent that
development of the Development results in the permanent or temporary displacement of
resident ia l tenants, homeowners, or businesses, then Borrower shall comp ly wit h all applicable
lo cal, state, and federal statutes and regulations with respect to relocation planning, advisory
assistance, and payment of monetary benefits. Borrower shall prepare and submit a relocation
plan to the County for approval. Borrower is solely responsible for payment of any relocat io n
benefits to any displaced persons and any other obligat io ns associated with complying with such
relocation laws. The Borrower shall indemnify, defend (with counsel reasonably chosen by the
County), and hold harmless the County against all claims that arise out of relocation obligatio ns
to resident ia l tenants, homeowners, or businesses permanent ly or temporarily displaced by the
Development.
(vii)Discriminat io n against the Disabled. The requirements of Section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and federal regulatio ns issued pursuant
thereto, which prohibit discriminat io n 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
863\83\823566.4 21
requirements of Title II and/or Title III of the Americans wit h Disabilit ies Act of 1990 (42
U.S.C. 12131 et seq.), and federal regulat io ns issued pursuant thereto.
(viii)Clean Air and Water Acts. The Clean Air Act, as amended, 42
U.S.C. 7401 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
seq., and the regulat io ns of the Environmental Protection Agency with respect thereto, at 40
C.F.R. Part 1500, as amended from time to time.
(ix)Uniform Administrative Requirements. The provisio ns of 24 CFR
92.505 regarding cost and audit ing requirements.
(x)Training Opportunit ie s. 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 fo r training and emplo yment be given
to lower income residents of the project area and agreements for work in connect io n with the
project be awarded to business concerns which are located in, or owned in substantia l part by
persons residing in, the areas of the project. Borrower agrees to include the follo wing language
in all subcontracts executed under this Agreement:
(1)The work to be performed under this contract is subject to
the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended,
12 U.S.C. 1701u. The purpose of Section 3 is to ensure that employment and other economic
opportunit ie s generated by HUD assistance or HUD-assisted projects covered by Sect io n 3, shall,
to the greatest extent feasible, be directed to low-and very low-income persons, particularly
persons who are recipients of HUD assistance for housing.
(2)The parties to this contract agree to comply with HUD's
regulat io ns in 24 C.F.R. Part 135, which implement Section 3. As evidenced by their executio n
of this contract, the parties to this contract certify that they are under no contractual or other
impediment that would prevent them from comp lying with the Part 135 regulatio ns.
(3)The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collect ive bargaining agreement or
other understanding, if any, a notice advising the labor organizatio n or workers’ representative of
the contractor's commit ments under this Sect io n 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 tit les subject to hire; availability of apprent iceship and
training posit io ns; the qualificat io ns for each; the name and location of the person(s) taking
applicat io ns for each of the posit io ns; and the ant ic ipated date the work shall begin.
(4)The contractor agrees to include this Section 3 clause in
every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to
take appropriate action, as provided in an applicable provision of the subcontract or in this
Section 3 clause, upon a finding that the subcontractor is in violat io n of the regulat io ns 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 violat io n of the regulat io ns in
24 C.F.R. Part 135.
863\83\823566.4 22
(5)The contractor will certify that any vacant employment
positions, including training positio ns, that are filled (1) after the contractor is selected but before
the contract is executed, and (2) with persons other than those to whom the regulatio ns of 24
C.F.R. Part 135 require emplo yment opportunit ies to be directed, were not filled to circumvent
the contractor's obligat io ns under 24 C.F.R. Part 135.
(6)Noncompliance with HUD's regulations in 24 C.F.R. Part
135 may result in sanct io ns, terminat io n of this contract for default , and debarment or suspension
fro m future HUD assisted contracts.
(7)Wit h respect to work performed in connectio n with Section
3 covered Indian housing assistance, sectio n 7(b) of the Indian Self-Determinat io n 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 fo r
training and emplo yment 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 Sect io n 3 and sect io n 7(b) agree to
comply with Sect io n 3 to the maximum extent feasible, but not in derogation of comp liance with
sect io n 7(b).
(xi)Labor Standards.The applicable labor requirements set forth in 24
C.F.R. Section 92.354. The prevailing wage requirements of the Davis-Bacon Act and
implement ing rules and regulat io ns (40 U.S.C. 3141-3148); the Copeland "Ant i-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" co mpensat io n at a rate of 1-1/2 times their regular hourly wage after they have
worked forty (40) hours in one (1) week; and Tit le 29, Code of Federal Regulat io ns, Subt it le A,
Parts 1, 3 and 5 are the regulat io ns and procedures issued by the Secretary of Labor for the
administration and enforcement of the Davis-Bacon Act, as amended.
(xii)Drug Free Workplace. The requirements of the Drug Free
Wo rkplace Act of 1988 (P.L. 100-690) and implement ing regulat io ns at 24 C.F.R. Part 24.
(xiii)Ant i-Lobbying; Disclosure Requirements. The disclosure
requirements and prohibit io ns of 31 U.S.C. 1352 and implement ing regulations at 24 C.F.R.
Part 87.
(xiv)Historic Preservation. The Borrower shall comply with the historic
preservat io n 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.
(xv)Fait h Based Act ivit ies. The requirements of 24 C.F.R. 92.257
regarding eligible use of funds by organizatio ns that are religious or faith-based.
863\83\823566.4 23
(xvi)HUD Regulat io ns. Any other HUD regulations present or as may
be amended, added, or waived in the future pertaining to the Loan funds, including but not
limited to HUD regulat io ns as may be promulgated regarding subrecipients.
Section 4.8 Hazardous Materials.
(a)Borrower shall keep and maintain the Property in compliance with, and
may not cause or permit the Property to be in vio lation of any federal, state or local laws,
ordinances or regulat io ns relat ing to industrial hygiene or to the environmental conditio ns on,
under or about the Property including, but not limit ed to, soil and ground water conditions.
Borrower may not use, generate, manufacture, store or dispose of on, under, or about the
Property or transport to or from the Property any flammable explosives, radioactive materials,
hazardous wastes, toxic substances or related materials, including without limitatio n, any
substances defined as or included in the definitio n of "hazardous substances," hazardous wastes,"
"hazardous materials," or "toxic substances" under any applicable federal or state laws or
regulat io ns (collectively referred to hereinafter as "Hazardous Materials") except such of the
fo regoing as may be customarily used in construction of projects like the Development or kept
and used in and about resident ia l property of this type.
(b)Borrower shall immediately advise the County in writing if at any time it
receives written notice of (i) any and all enforcement, cleanup, removal or other governmental or
regulatory act io ns inst it uted, completed or threatened against Borrower or the Property pursuant
to any applicable federal, state or local laws, ordinances, or regulat io ns relating to any Hazardous
Materials, ("Hazardous Materials Law"), (ii) all claims made or threatened by any third party
against Borrower or the Property relat ing to damage, contribut io n, cost recovery compensat io n,
lo ss 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) Borrower's
discovery of any occurrence or condition on any real property adjoining or in the vicinit y of the
Property that could cause the Property or any part thereo f to be classified as "border-zo ne
property" (as defined in California Healt h and Safety Code Section 25117.4) under the provisio n
of California Healt h and Safety Code, Section 25220 et seq., or any regulat io n adopted in
accordance therewith, or to be otherwise subject to any restrictio ns on the ownership, occupancy,
transferabilit y or use of the Property under any Hazardous Materials Law.
(c)The County has the right to join and part ic ipate in, as a party if it so elects,
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. Borrower
shall indemnify and hold harmless the County and its boardmembers, supervisors, directors,
officers, emplo yees, agents, successors and assigns from and against any loss, damage, cost,
expense or liabilit y directly or indirectly arising out of or attributable to the use, generation,
storage, release,threatened release, discharge, disposal, or presence of Hazardous Materials on,
under, or about the Property including without limitation: (i) all foreseeable consequent ia l
damages, (ii) the costs of any required or necessary repair, cleanup or detoxificat io n of the
Property and the preparation and implementation of any closure, remedial or other required
plans, and (iii) all reasonable costs and expenses incurred by the County in connect io n with
clauses (i) and (ii), including but not limited to reasonable attorneys' fees and consultant's fees.
This indemnificat io n applies whether or not any government agency has issued a cleanup order.
863\83\823566.4 24
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 restrict io n of use of rentable space on the Property, (3) adverse effect on the marketing
of any rental space on the Property, and (4) penalt ies 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, remediatio n, repair, removal, cleanup or detoxificatio n of the
Property and surrounding properties). This obligat ion to indemnify will survive terminat io n of
this Agreement.
(d)Wit hout the County's prior written consent, which will not be
unreasonably withheld, Borrower may not take any remedial actio n 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 act io n, settlement, consent decree or compromise might, in the Count y's
judgment, impair the valu e 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 actio n, 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 sanct io ns or penalt ies if it fails to take a required action,
(iii) Borrower establishes to the satisfact io n of the County that there is no reasonable alternative
to such remedial act io n which would result in less impairment of the County's securit y
hereunder, or (iv) the action has been agreed to by the County.
(e)Borrower hereby acknowledges and agrees that (i) this Sectio n is int ended
as the County's written request for informatio n (and Borrower's response) concerning the
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5, and (ii) each representation and warrant y in this Agreement (together with any
indemnit y obligat io n applicable to a breach of any such representation and warranty) with
respect to the environmental condit io n of the Property is intended by the Parties to be an
"environmental provision" fo r purposes of California Code of Civil Procedure Section 736.
(f)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 affect ing 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 o f an unsecured creditor, including reduction of its claim against the
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), the Borrower will be deemed to have willfully permitted or
acquiesced in a release or threatened release of Hazardous Materials, within the meaning of
863\83\823566.4 25
California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of
Hazardous Materials was knowingly or negligent ly caused or contributed to by any lessee,
occupant, or user of any portion of the Property and the Borrower knew or should have known of
the activit y 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 act io n co mmenced 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 lesser of ten
percent (10%) and the maximum rate permitted by law, 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 fo llo wing the conclusion of such action.
Section 4.9 Maintenance and Damage.
(a)During the course of both rehabilitat io n and operatio n of the
Development, Borrower shall maintain the Development and the Property in good repair and in a
neat, clean and orderly conditio n. If there arises a condit io n in contravent io n of this requirement,
and if Borrower has not cured such conditio n within thirty (30) days after receiving a County
notice of such a condit io n, then in addit io n to any other rights available to the County, the
County may perform all acts necessary to cure such condition, and to establish or enforce a lien
or other encumbrance against the Property, subject to the provisions provided in subsect io n (b)
below.
(b)Subject to the requirements of senior lenders, and if economically feasible
in the Count y’s judgment after consultat io n wit h the Borrower, if any improvement now or in the
future on the Property is damaged or destroyed, then Borrower shall, at its cost and expense,
diligent ly undertake to repair or restore such improvement consistent with the plans and
specifications approved by the Count y with such changes as have been approved by the Count y.
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 thirt y
(30) days follo wing receipt of the insurance proceeds, and is to be complete within one (1) year
thereafter. Any insurance proceeds collected for such damage or destruction are to be applied to
the cost of such repairs or restoration and, if such insurance proceeds are insufficient for such
purpose, then Borrower shall make up the deficiency. If Borrower does not promptly make such
repairs then any insurance proceeds collected for such damage or destruction are to be promptly
delivered by the Borrower to the County as a special repayment of the Loan, subject to the rights
of the Senior Lenders, if any.
Section 4.10 Fees and Taxes.
Borrower is so le ly responsible for payment of all fees, assessments, taxes, charges, and
levies imposed by any public authority or utilit y company with respect to the Property or the
Development, and shall pay such charges prior to delinquency. However, Borrower is not
required to pay and discharge any such charge so long as (i) the legality thereof is being
contested diligent ly and in good fait h 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
863\83\823566.4 26
County in good faith from time to time determines appropriate to protect the County from the
consequences of the contest being unsuccessful.
Section 4.11 Notice of Lit igat io n.
Borrower shall prompt ly notify the County in writing of any litigat io n that has the
potential to materially affect Borrower or the Property and o f any claims or disputes that involve
a material risk of such lit igat io n.
Section 4.12 Operation of Development as Affordable Housing.
(a)The Borrower shall operate the Development as an affordable housing
development consistent with (i) HUD's requirements for use of the HOME Funds for the County-
Assisted Units, and (ii) the Regulatory Agreement.
(b)Before newly leasing any unit in the Development after execution of this
Agreement, but in no event more than thirty (30) days after execut io n of this Agreement, the
Borrower shall submit its proposed form of lease agreement for the County's review and
approval. The term of the form of lease agreement for any unit in the Development is to be for
no less than one (1) year, except by mutual agreement between Borrower and the Tenant and
shall not contain any provision which is prohibited by 24 C.F.R. 92.253(d) and any modificat io ns
thereto. Any Borrower termination of a lease agreement for any unit in the Development, or
refusal to renew must be in conformance with 24 C.F.R. 92.253(c) and must be preceded by not
less than sixt y (60) days written notice to the Tenant by the Borrower specifying the grounds for
the action. If after the execut io n of this Agreement Borrower redesignates a unit to be a County-
Assisted Unit, Borrower shall amend the existing lease for such unit to include the applicable
HOME provisio ns set forth in this Section 4.12 and in the Regulatory Agreement in a form
approved by the Count y.
(c)Before newly leasing any unit in the Development after execution of this
Agreement, but in no event more than thirty (30) days after execut io n of this Agreement, the
Borrower shall provide the County, for its review and approval, with the Borrower's written
tenant selection plan. Borrower's tenant selectio n plan must, at a minimum, meet the
requirements for tenant select io n set out in 24 C.F.R. 92.253(d), and any modificatio ns thereto.
(d)Borrower shall evaluate the income eligibilit y of each Tenant household in
a County-Assisted Units pursuant to the County's approved tenant certification procedures within
sixt y (60) days before the household 's expected occupancy of one of the County-Assisted Unit s.
Borrower shall cert ify each Tenant household 's income on an annual basis.
(e)Informat io n documenting the maximum household income of a household
occupying a Count y-Assisted Unit, and the total charges for rent, utilities, and related services to
each househo ld occupying the Development, is to be maintained as provided in the Regulatory
Agreement.
863\83\823566.4 27
Section 4.13 Nondiscriminat io n.
The Borrower covenants by and for itself and its successors and assigns that there will be
no discriminat io n against or segregation of a person or of a group of persons on account of race,
color, religio n, creed, age, familial status, disability, sex, sexual orientation, marital status,
ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjo yment of the Property, nor may the Borrower or any person claiming under or through the
Borrower establish or permit any such practice or practices of discriminatio n or segregation with
reference to the select io n, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the Property. The foregoing covenant will run with the land.
Section 4.14 Transfer.
(a)For purposes of this Agreement, "Transfer" means any sale, assignment,
or transfer, whether vo lu nt ary or invo lu nt ary, of (i) any rights and/or duties under this
Agreement, and/or (ii) any interest in the Development, including (but not limited to) a fee
simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold int erest, a
securit y int erest, or an interest evidenced by a land contract by which possessio n 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 comp liance wit h the Regulatory
Agreement. The County Deput y Director –Redevelopment is authorized to execute assignment
and assumption agreements on behalf of the County to implement any approved Transfer.
(b)No Transfer is permitted without the prior written consent of the County,
which the County may withhold in its sole discret ion. The Loan will automat ically accelerate and
be due in full upon any Transfer made without the prior written consent of the County.
(c)Borrower anticipates syndicat ing the low inco me housing tax credits that
will be generated by the Development, which syndicat io n will require Transfer of the Property
and assignment of the Loan Documents to the Partnership. The County hereby approves the
assignment of the Loan Documents and Transfer of the Property to the Partnership, provided
that: (i) all documents associated with the low income housing tax credit syndicatio n of the
Development (including the partnership agreement) are submitted to the County fo r approval
prior to execution; and (ii) the Partnership expressly assumes the obligat io ns o f the Borrower
under the Loan Documents, utilizing a form of assignment, assumptio n and release agreement
approved by the Count y.
Section 4.15 Insurance Requirements.
(a)The Borrower shall maintain the follo wing insurance coverage throughout the
Term of the Loan:
(i)Wo rker's Co mpensation insurance to the extent required by law,
including Emplo yer's Liabilit y coverage, with limits not less than One Million Do llars
($1,000,000) each accident.
863\83\823566.4 28
(ii)Comprehensive General Liabilit y insurance wit h limits not less
than Two Millio n Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury
and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform
Property Damage, Products and Completed Operations.
(iii)Comprehensive Automobile Liabilit y insurance with limits not less
than One Millio n Do llars ($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 lo ss, 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)Blanket Fidelity Bond or commercial crime insurance, covering all
officers and emplo yees, for loss of Loan proceeds caused by dishonesty, in the amount of the
Loan naming the County a Loss Payee, as its interests may appear.
(b)The Borrower shall cause any general contractor, agent, or subcontractor
working on the Development under direct contract with the 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 fo r comprehensive general liabilit y insurance for
subcontractors must be One Million Do llars ($1,000,000), and must require that such insurance
will meet all o f 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 subsectio ns (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)Comprehensive General Liabilit y, Comprehensive Automobile Liabilit y
and Property insurance policies must be endorsed to name as an additio nal insured the County
and its officers, agents, employees and members of the County Board of Supervisors.
(e)All po licies and bonds are to contain (i) the agreement of the insurer to
give the County at least thirty (30) days notice prior to cancellat io n (including, without
limitation, for non-payment of premium) or any material change in said policies; (ii) an
agreement that such policies are primary and non-contribut ing wit h any insurance that may be
carried by the Count y; (iii) a provisio n that no act or omission of the Borrower shall affect or
limit the obligat io n of the insurance carrier to pay the amount of any loss sustained; and (iv) a
waiver by the insurer of all rights of subrogation against the County and its authorized parties in
connection wit h any loss or damage thereby insured against.
863\83\823566.4 29
Section 4.16 Ant i-Lobbying Certificat io n.
The Borrower certifies, to the best of Borrower's knowledge or belief, that:
(a)No Federal appropriated funds have been paid or will be paid, by or on
behalf o f it , to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or emplo yee 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 extensio n, continuat io n, renewal, amendment, or modificatio n of any Federal contract,
grant, loan, or cooperative agreement;
(b)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 emplo yee of any
agency, a Member of Congress, an officer or employee of Congress, or an emplo yee 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.
This certificat io n is a material representation of fact upon which reliance was placed
when this Agreement was made or entered into. Submission of this cert ification is a prerequisite
fo r making or entering into this Agreement imposed by Sect io n 1352, Tit le 31, U.S. Code. Any
person who fails to file the required certificatio n 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.
Section 4.17 Payment of Other Indebtedness; Notice of Default
(a)Borrower shall pro mpt ly pay the principal and interest when due on any
other indebtedness related to the Development.
(b)Borrower shall prompt ly notify the County in writing of any defaults
declared under any other financing for the Development by the lender of such financing.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER
Section 5.1 Representations and Warrant ie s.
Borrower hereby represents and warrants to the Count y as fo llo ws and acknowledges,
understands, and agrees that the representations and warranties set forth in this Artic le 5 are
deemed to be continuing during all t imes when any or all o f the Loan remains outstanding:
(a)Organizat io n. Borrower is duly organized, validly exist ing 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.
863\83\823566.4 30
(b)Authority of Borrower. Borrower has full power and authorit y 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 o f the above.
(c)Authority of Persons Execut ing 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 organizat io nal documents and applicable governing law for
the authorization, execut io n, 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. This Agreement and the Loan Documents and
all other documents or instruments which have been executed and delivered pursuant to or in
connection wit h this Agreement constitute or, if not yet executed or delivered, will when so
executed and delivered constit ut e, legal, valid and binding obligat io ns o f Borrower enforceable
against it in accordance with their respective terms.
(e)No Breach of Law or Agreement. Neither the execution nor delivery of
this Agreement and 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 conflict with or result in a
breach of any statute, rule or regulat io n, or any judgment, decree or order of any court, board,
commissio n or agency whatsoever binding on Borrower, or any provision of the organizat io nal
documents of Borrower, or will conflict with or const it ute a breach of or a default under any
agreement to which Borrower is a party, or will result in the creation or impositio n of any lien
upon any assets or property of Borrower, other than liens established pursuant hereto.
(f)Compliance with Laws; Consents and Approvals. The rehabilitat io n of
the Development will comp ly with all applicable laws, ordinances, rules and regulations of
federal, state and local governments and agencies and with all applicable direct io ns, rules and
regulat io ns of the fire marshal, healt h officer, building inspector and other officers of any such
government or agency.
(g)Pending Proceedings. Borrower is not in default under any law or
regulat io n or under any order of any court, board, commission or agency whatsoever, and there
are no claims, act io ns, suits or proceedings pending or, to the knowledge o f Borrower, threatened
against or affect ing 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 Bo rrower,
materially affect Borrower's abilit y to repay the 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
863\83\823566.4 31
respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever
other than liens for current real property taxes and liens in favor of the County or approved in
writing by the Count y.
(i)Financial Statements. The financial statements of Borrower and other
financial data and informatio n fur nished by Borrower to the County fairly and accurately present
the informat io n contained therein as of the date thereof. As of the date of this Agreement, there
has not been any material adverse change in the financial conditio n of Borrower fro m that shown
by such financial statements and other data and information.
(j)Sufficient Funds. Borrower holds sufficient funds and/or binding
commit ments for sufficient funds to complete the rehabilitatio n of the Development in
accordance with the plans and specifications approved by the County.
(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
inco me or the Property otherwise due and payable, except those which are being contested in
good fait h 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 upon the Property, liabilities (actual or contingent), operations, condit io n
(financial or otherwise) or prospects of the Borrower and its subsidiaries, taken as a whole,
which would be expected to result in a material impairment of the abilit y of Borrower to perform
under any Loan Document to which it is a party, or a material adverse effect upon the legality,
validit y, binding effect or enforceability against Borrower of any Loan Document.
ARTICLE 6 DEFAULT AND REMEDIES
Section 6.1 Events of Default.
Each of the fo llo wing constitutes an "Event of Default" by Borrower under this
Agreement:
(a)Failure to Construct. Failure of Borrower to commence and comp lete
rehabilitat io n of the Development within the times set forth in Artic le 3 above.
(b)Failure to Make Payment. Failure to repay the principal and any int erest
on the Loan when such payment is due pursuant to the Loan Documents.
(c)Breach of Covenants. Failure by Borrower to duly perform, comply wit h,
or observe any of the condit io ns, terms, or co venants of any of the Loan Documents, and such
failure continues uncured for thirt y (30) days after receipt of written notice thereof from the
County to the Borrower; provided, however, that if a different period or notice requirement is
specified under any other section of this Art ic le 6, the specific provisions will control.
863\83\823566.4 32
(d)Default Under Other Loans. A default is declared under any other
financing for the Development by the lender of such financing.
(e)Inso lvency. A court having jurisdict io n makes or enters any decree or
order (i) adjudging Borrower to be bankrupt or insolvent, (ii) approving as properly filed a
petition seeking reorganizatio n 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 jurisdict io n, (iii) appo int ing a receiver, trustee, liquidator, or assignee of Borrower
in bankruptcy or insolvency or for any of their properties, (iv) direct ing the winding up or
liquidat io n 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 Count y, the indebtedness evidenced by the Note.
(f)Assignment; Attachment. Borrower assigns its assets for the benefit of its
creditors or suffers a sequestration or attachment of or executio n on any substant ia l part of its
property, unless the property so assigned, sequestered, attached or executed upon is returned or
released within ninet y (90) calendar days after such event or, if sooner, prior to sale pursuant to
such sequestration, attachment, or executio n. The occurrence of any of the events of default in
this paragraph shall act to accelerate automatically, without the need for any act io n by the
County, the indebtedness evidenced by the Note.
(g)Suspensio n; Terminat io n. Borrower voluntarily suspends its business or,
the partnership is dissolved or terminated, other than a technical terminatio n of the partnership
fo r tax purposes.
(h)Liens on Property and the Development. Any claim o f lien (other than
liens approved in writ ing by the Count y) is filed against the Development or any part thereof, or
any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds
of the Loan and the continued maintenance of said claim of lien or notice to withhold fo r a
period of twenty (20) days, without discharge or satisfact io n thereof or provisio n therefor
(including, without limitatio n, the posting of bonds) satisfactory to the County.
(i)Condemnation. The condemnation, seizure, or appropriatio n of all or the
substant ia l part of the Property and the Development.
(j)Unauthorized Transfer. Any Transfer other than as permitted by
Section 4.14.
(k)Representation or Warrant y Incorrect. Any Borrower representation or
warrant y contained in this Agreement, or in any application, financial statement, certificate, or
report submitted to the County in connect io n with any of the Loan Documents, proves to have
been incorrect in any material respect when made. After issuance of the certificates of
occupancy for the Development, an Event of Default may be declared under this subsection only
if the failure of representation or warranty also has a material adverse effect on the operation of
the Development.
863\83\823566.4 33
Section 6.2 Remedies.
The occurrence of any Event of Default hereunder follo wing the expirat io n of all
applicable notice and cure periods will, either at the optio n of the County or automatically where
so specified, relieve the County of any obligat io n to make or continue the Loan and will give the
County the right to proceed with any and all remedies set forth in this Agreement and the Loan
Documents, including but not limited to the following:
(a)Acceleration of Note. The County may cause all indebtedness of the
Borrower to the County under this Agreement and the Note, together with any accrued interest
thereon, to become immediately due and payable. The Borrower waives all right to present me nt ,
demand, protest or notice of protest or dishonor. The County ma y 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 Co mmercial Code, including foreclosure under the
Deed of Trust. The 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 connect io n with the collection of the Loan and the preservat io n,
maintenance, protection, sale, or other dispositio n of the securit y given for the Loan.
(b)Specific Performance. The County has the right to mandamus or other
suit, action or proceeding at law or in equity to require Borrower to perform its obligatio ns and
covenants under the Loan Documents or to enjoin acts on things which may be unlawful or in
vio lat io n of the provisio ns of the Loan Documents.
(c)Right to Cure at Borrower's Expense. The County has the right (but not
the obligation) to cure any monetary default by Borrower under a loan other than the Loan. The
Borrower shall reimburse the County for any funds advanced by the Count y to cure a monetary
default by Borrower upon demand therefor, together with interest thereon at the lesser of the
maximum rate permitted by law and ten percent (10%) per annum (the "Default Rate") from the
date of expenditure unt il the date of reimbursement.
Section 6.3 Right of Contest.
Borrower may contest in good faith any claim, demand, levy, or assessment the assertion
of which would const it ut e an Event of Default hereunder. Any such contest is to be prosecuted
diligent ly and in a manner unprejudicial to the Count y or the rights of the County hereunder.
Section 6.4 Remedies Cumulat ive.
No right, power, or remedy given to the County by the terms of this Agreement or the
Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and
every such right, power, or remedy will be 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.
863\83\823566.4 34
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, limit ed or general partnership, or jo int venture between the County and Borrower or
it s 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, direct io n, compensation, and discharge of all persons
assist ing 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 relat ing to payment
of its employees, including comp liance wit h Social Securit y, withholding, and all other laws and
regulat io ns 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 who m Borrower may have contracted
relat ive to the purchase of materials, supplies or equipment, or the furnishing or the performance
of any work or services wit h 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 variat io n of the terms of this Agreement is valid unless made in writing
by the Parties. The Count y Deputy Director –Redevelopment is authorized to execute on behalf
of the County amendments to the Loan Documents or amended and restated Loan Documents as
lo ng as any material change in the amount or terms of this Agreement is approved by the County
Board of Supervisors, or in the event the amounts or terms of financing provided by other parties
fo r the Development is revised, requiring conforming amendments to the Loan Documents.
Section 7.4 Indemnification.
The Borrower shall indemnify, defend and hold the County harmless against any and all
claims, suits, actions, losses and liabilit y of every kind, nature and descript io n made against it
and expenses (including reasonable attorneys' fees) which arise out of or in connectio n with this
Agreement, including but not limited to the purchase of the Property, development,
rehabilitat io n, marketing and operation of the Development, except to the extent such claim
arises from the grossly negligent or willful misconduct of the County, its agents, and its
employees. The provisions of this Section will survive the expirat io n of the Term and the
reconveyance of the Deed of Trust.
863\83\823566.4 35
Section 7.5 Non-Liability of Count y 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 by the Count y or for any amount that may become due to
Borrower or its successor or on any obligat io n under the terms of this Agreement.
Section 7.6 No Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
Section 7.7 Discretion Retained By Count y.
The County's execut io n of this Agreement in no way limit s the discret io n of the County
in the permit and approval process in connect io n with the rehabilitation 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 functio ns or
responsibilit ies with respect to the activities fu nded pursuant to this Agreement or who is in a
position to participate in a decision-making process or gain inside informatio n with regard to
such activit ies, may obtain a personal or financial interest or benefit from the act ivit y, or have an
int erest in any contract, subcontract or agreement with respect thereto, or the proceeds
thereunder, either for themselves or those with whom they have family or business t ies, during,
or at any time after, such person's tenure. Borrower shall exercise due diligence to ensure that
the prohibit io n in this Section 7.8(a) is follo wed.
(b)The conflict of interest provisions of Section 7.8(a) above apply to any
person who is an employee, agent, consultant, officer, or any immediate family member of such
person, or any elected or appointed official of the County, or any person related within the third
(3rd) degree of such person.
(c)In accordance with California Government Code Section 1090 and the
Polit ical Reform Act, California Government Code section 87100 et seq., no person who is a
director, officer, partner, trustee or employee or consultant of the 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, commissio n 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 sect io n is governed by the definit io ns and provisions
used in the Polit ical Reform Act, California Government Code Section 87100 et seq., its
implement ing regulat io ns manual and codes, and California Government Code Section 1090
(d)The Borrower shall comp ly with the conflict of interest provisio ns set
fo rth in 24 C.F.R. Section 92.356.
863\83\823566.4 36
Section 7.9 Notices, Demands and Communicat io ns.
All notices required or permitted by any provisio n of this Agreement must be in writ ing
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 Conservat io n and Development
Redevelopment Divisio n
2530 Arno ld Drive, Suite 190
Martinez, CA 94553
At tention: Deputy Director –Redevelopment
Borrower:BRIDGE Regional Partners, Inc.
345 Spear Street, Suite 700
San Francisco, CA 94105
At tention: President
Such written notices, demands and communicatio ns ma y 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 entir e Term, and the benefit hereof is to
inure to the benefit of the County and its successors and assigns.
Section 7.12 At torneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing
Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other
Party.
Section 7.13 Severabilit y.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid,
vo id or unenforceable, the remainder of the provisions will continue in full force and effect
863\83\823566.4 37
unless the rights and obligat io ns of the Parties have been materially altered or abridged by such
invalidat io n, vo id ing or unenforceabilit y.
Section 7.14 Force Majeure.
In addit io n to specific provisions of this Agreement, performance by either Party shall not
be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-
outs, riots, floods, earthquakes, fires, quarant ine restrict io ns, freight embargoes, lack of
transportation, or court order. An extension of t ime 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 of receipt of the notice. In no event shall the Count y be required to
agree to cumulat ive delays in excess of one hundred eighty (180) days.
Section 7.15 County Approval.
The County has authorized the County Deput y Director-Redevelopment to execute the
Loan Documents and deliver such approvals or consents as are required by this Agreement, and
to execute estoppel certificates concerning the status of the Loan and the existence of Borrower
defaults under the Loan Documents.
Section 7.16 Waivers.
Any waiver by the County of any obligation or conditio n in this Agreement must be in
writing. No waiver will be implied from any delay or failure by the Count y 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 obligat io ns 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 tit le s of the sect io ns or subsect io ns 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 Agreement of the Parties.
This Agreement, the Note, the Regulatory Agreement and the Deed of Trust constitute
the ent ir e agreement of the Parties with respect to the Loan.
Section 7.19 Multiple Originals; Counterpart.
This Agreement may be executed in multip le originals, each of which is deemed to be an
original, and may be signed in counterparts.
Signature page
County Loan Agreement
863\83\823566.4
38
WHEREAS, this Agreement has been entered into by the undersigned as of the date first
above written.
COUNTY:
COUNTY OF CONTRA COSTA, a polit ical
subdivisio n of the State of California
By:_________________________________
James Kennedy
Deputy Director -Redevelopment
Approved as to form:
SHARON L. ANDERSON
County Counsel
By:
Kathleen Andrus
Deputy Count y Counsel
BORROWER:
BRIDGE REGIONAL PARTNERS, INC., a
California nonprofit public benefit corporation
By:___________________________
Its:_____________________________
A-1
863\83\823566.4
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land is situated in the State of California, County of Contra Costa, Cit y of Pittsburg,
and is described as fo llo ws:
B-1
863\83\823566.4
EXHIBIT B
APPROVED DEVELOPMENT BUDGET
863\83\823566.4
COUNTY HOME LOAN AGREEMENT
by and between
THE COUNTY OF CONTRA COSTA
and
BRIDGE REGIONAL PARTNERS, INC.
(Woods Grove Apartments)
TABLE OF CONTENTS
Page
i
863\83\823566.4
ARTICLE 1 DEFINITIONS AND EXHIBITS ........................................................................2
Section 1.1 Definit io ns...............................................................................................2
Section 1.2 Exhibit s...................................................................................................4
ARTICLE 2 LOAN PROVISIONS .........................................................................................4
Section 2.1 Loan........................................................................................................4
Section 2.2 Interest.....................................................................................................4
Section 2.3 Use of Loan Funds...................................................................................4
Section 2.4 Security...................................................................................................5
Section 2.5 Subordination..........................................................................................5
Section 2.6 Conditions Precedent to Disbursement of Loan Funds..............................6
Sectio n 2.7 Conditions Precedent to Disbursement of Retent io n.................................7
Section 2.8 Repayment Schedule................................................................................8
Section 2.9 Non-Recourse........................................................................................11
ARTICLE 3 REHABILITATION OF THE DEVELOPMENT ..............................................11
Section 3.1 Permits and Approvals...........................................................................11
Section 3.2 Bid Package...........................................................................................12
Section 3.3 Construction Contract............................................................................12
Section 3.4 Construction Bonds................................................................................13
Section 3.5 Commencement of Rehabilitatio n..........................................................13
Section 3.6 Complet io n of Rehabilitat io n.................................................................13
Section 3.7 Rehabilitat io n Pursuant to Plans and Laws; Prevailing
Wages; Accessibilit y..............................................................................13
Section 3.8 Marketing Plan......................................................................................15
Section 3.9 Equal Opportunity..................................................................................15
Section 3.10 Minority and Wo me n-Owned Contractors..............................................15
Section 3.11 Progress Reports....................................................................................15
Section 3.12 Construction Responsibilit ies.................................................................16
Section 3.13 Mechanics Liens, Stop Notices, and Notices of Complet io n...................16
Section 3.14 Inspect io ns.............................................................................................16
Section 3.15 Approved Development Budget; Revisions to Budget............................17
ARTICLE 4 LOAN REQUIREMENTS ................................................................................17
Section 4.1 Match Requirement................................................................................17
Section 4.2 Financial Account ing and Post-Co mp let io n Audit s................................17
Section 4.3 Annual Operat ing Budget Audited Financial Statements........................17
Section 4.4 Informat io n............................................................................................17
Section 4.5 Records..................................................................................................17
Section 4.6 County Audits........................................................................................19
Section 4.7 HOME Requirements.............................................................................19
Section 4.8 Hazardous Materials..............................................................................23
Section 4.9 Maintenance and Damage......................................................................25
Section 4.10 Fees and Taxes.......................................................................................25
Section 4.11 Notice of Lit igat io n................................................................................26
Section 4.12 Operation of Development as Affordable Housing.................................26
Section 4.13 Nondiscriminat io n.................................................................................27
Section 4.14 Transfer.................................................................................................27
TABLE OF CONTENTS
(continued)
Page
ii
863\83\823566.4
Section 4.15 Insurance Requirements.........................................................................27
Section 4.16 Ant i-Lobbying Certificat io n...................................................................29
Section 4.17 Payment of Other Indebtedness; Notice of Default .................................29
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER ......................29
Section 5.1 Representations and Warrant ie s.............................................................29
ARTICLE 6 DEFAULT AND REMEDIES ...........................................................................31
Section 6.1 Events of Default...................................................................................31
Section 6.2 Remedies...............................................................................................33
Section 6.3 Right of Contest.....................................................................................33
Section 6.4 Remedies Cumulat ive............................................................................33
ARTICLE 7 GENERAL PROVISIONS ................................................................................34
Section 7.1 Relationship of Parties...........................................................................34
Section 7.2 No Claims..............................................................................................34
Section 7.3 Amendments..........................................................................................34
Section 7.4 Indemnification......................................................................................34
Section 7.5 Non-Liability of Count y Officials, Employees and Agents.....................35
Section 7.6 No Third Party Beneficiaries..................................................................35
Section 7.7 Discretion Retained By Count y..............................................................35
Section 7.8 Conflict of Interest.................................................................................35
Section 7.9 Notices, Demands and Co mmunicat io ns................................................36
Section 7.10 Applicable Law......................................................................................36
Section 7.11 Parties Bound.........................................................................................36
Section 7.12 At torneys' Fees......................................................................................36
Section 7.13 Severabilit y............................................................................................36
Section 7.14 County Approval...................................................................................37
Section 7.15 Waivers.................................................................................................37
Section 7.16 Title of Parts and Sections......................................................................37
Section 7.17 Entire Agreement of the Parties..............................................................37
Section 7.18 Multiple Originals; Counterpart.............................................................37
Exhibit A:Legal Descript io n of the Property
Exhibit B:Approved Development Budget
863\83\852502.2 1
PROMISSORY NOTE
(HOME Loan)
Wo ods Grove Apartments
$800,000 Martinez, California
September 1, 2010
FOR VALUE RECEIVED, the undersigned BRIDGE Regional Partners, Inc., a
California nonprofit public benefit corporation ("Borrower") hereby pro mises to pay to the order
of the County of Contra Costa, a polit ic al subdivision of the State of California ("Ho lder"), the
principal amount of Eight Hundred Thousand Dollars ($800,000) plus interest thereon pursuant
to Section 2 below.
1.Borrower's Obligation.This Note evidences Borrower's obligat io n to repay
Holder the principal amount of up to Eight Hundred Thousand Dollars ($800,000) for the funds
lo aned to Borrower by Holder to finance the development of the Property pursuant to the HOME
Loan Agreement between Borrower and Holder of even date herewith (the "Loan Agreement").
All capitalized terms used but not defined in this Note have the meanings set forth in the Loan
Agreement.
2.Interest.
(a)Subject to the provisions of Subsect io n (b) below, simple interest will
accrue on the outstanding principal balance of the Loan at a per annum rate of interest equal to
three percent (3%), commencing on the date of disbursement.
(b)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.The unpaid principal balance hereunder,
together with accrued interest thereon, is due and payable no later than the date that is the fift y-
fift h (55th) anniversary of this Note. This Note is due and payable as set forth in Section 2.8 of
the Loan Agreement.
4.No Assumpt io n.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 int erest, 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 2.9 of the Loan Agreement. The terms
of the Deed of Trust are hereby incorporated into this Note and made a part hereof.
863\83\852502.2 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 Conservatio n and Development –
Redevelopment Divisio n, 2530 Arno ld Drive, Suite 190, Martinez, CA 94553, Attention:
Deputy Director-Redevelopment, 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 connect io n with the payment of this Note and the release of any security
hereo f.
(c)Notwithstanding any other provision of this Note, or any instrument
securing the obligat io ns 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
int erest 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 fro m 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 obligat io ns o f Borrower under this Note are absolut e 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 ; Accelerat io n.
(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 o f all amounts due and payable at the time of such payment does not constitute a waiver
of the right to exercise any of the foregoing remedies or options at that time or at any subsequent
time, or nullify any prior exercise of any such remedy or option, without the express consent of
Holder, except as and to the extent otherwise provided by law.
8.Waivers.
(a)Borrower hereby waives diligence, presentment, protest and demand, and
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
863\83\852502.2 3
to time, and that Holder may accept further security or release any securit y fo r this Note, all
without in any way affect ing the liabilit y of Borrower.
(b)Any extensio n of t ime fo r 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 obligatio ns hereunder are to be
strict ly construed, time being of the essence.
(e)The Loan Documents, of which this Note is a part, contain the entir e
agreement between the parties as to the Loan. This Note may not be modified except upon the
written consent of the parties.
IN WITNESS WHEREOF, Borrower has executed this Promissory Note as of the day
and year first above written.
BORROWER:
BRIDGE REGIONAL PARTNERS, INC., a California
nonprofit public benefit corporation
By:___________________________
Its:_____________________________
1
863\83\854731.4
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Contra Costa County
Department of Conservat io n and Development
2530 Arno ld Drive, Suite 190
Martinez, CA 94553
At tn: Deputy Director-Redevelopment
No fee for recording pursuant to
Government Code Section 27383
__________________________________________________________________________
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(Wo ods Grove HOME Lo an)
This Regulatory Agreement and Declaration of Restrict ive Covenants (the "Agreement")
is dated September 1, 2010, and is between the County of Contra Costa, a polit ic al subdivision of
the State of California (the "County"), and BRIDGE Regional Partners, Inc., a California
nonprofit public benefit corporation ("Borrower").
RECITALS
A.Defined Terms used but not defined in these recitals are as defined in Artic le 1 of
this Agreement.
B.The Loan that is the subject of this Agreement will be funded with Home
Invest me nt Partnerships Act funds received by the County from the United States Department of
Housing and Urban Development ("HUD"), and funded pursuant to the Cranston-Gonzales
National Housing Act of 1990 ("HOME Funds").
C.The Borrower owns certain real property located at 850 East Leland Road in the
City of Pittsburg, County of Contra Costa, State of California, as more particularly described in
Exhibit A (the "Property"). The Borrower intends to rehabilitate the exist ing 80 unit mult ifamily
building and attendant improvements located on the Property for continued use as housing
affordable to very-lo w and low income households (the “Development”). The Development, as
well as any additional improvements on the Property, including all landscaping, roads and
parking spaces on the Property, are the "Improvements".
D.The County and the Borrower are parties to a HOME Loan Agreement of even
date herewith (the “Loan Agreement”), pursuant to which the County will lend Borrower Eight
Hundred Thousand Dollars ($800,000) of HOME Funds (the “Loan”) to be applied toward the
rehabilitat io n of the Development.
2
863\83\854731.4
E. The County has the authority to lend the Loan to the 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 Count y has the authorit y to loan the
HOME Funds to provide affordable housing pursuant to 24 C.F.R. 92.205.
F. The County has agreed to make the Loan on the condit io n that the Development
be maintained and operated in accordance with restrictions concerning affordabilit y, operation,
and maintenance of the Development, that are set forth in this Agreement and in the Loan
Agreement.
G.In consideration o f receipt of the Loan at an interest rate substantia lly below the
market rate, Borrower agrees to observe all the terms and conditions set forth below.
The parties therefore agree as follo ws.
ARTICLE 1
DEFINITIONS
1.1 Definit io ns.
The fo llo wing terms have the follo wing meanings:
(a)"Actual Househo ld Size" means the actual number of persons in the
applicable household.
(b)"Ad ju sted Income" means the total anticipated annual inco me of all
persons in the Tenant household as calculated pursuant to 24 C.F.R. 92.203(b)(1).
(c)"Agreement" has the meaning set forth in the first paragraph of this
Agreement.
(d)"Assumed Househo ld Size" means the househo ld size "adjusted for family
size appropriate to the unit" as such term is defined in Health & Safet y Code Section 50052.5(h).
(e)"Count y-Assisted Units" means the eleven (11) Units within the
Development designated as assisted by the Count y pursuant to this Agreement.
(f)"Deed of Trust" means the Deed of Trust with Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith by and among the Borrower, as
trustor, Chicago Tit le Co mpany, as trustee, and the County, as beneficiary, that will encumber
the Property to secure repayment of the Loan and Borrower's performance of the covenants set
fo rth in the Loan Agreement.
(g)"Development" has the meaning set forth in Paragraph C of the Recitals.
3
863\83\854731.4
(h)"Extremely Low Income Household" means a household with an Adjusted
Inco me that does not exceed thirty percent (30%) of Median Income, adjusted for Actual
Househo ld Size.
(i)"Extremely Low Income Units" means the Units which, pursuant to
Section 2.1(a) below, are required to be occupied by Extremely Low Income Househo ld s.
(j)"Forty Percent Income Household" means a househo ld with an Adjusted
Inco me that does not exceed forty percent (40%) of Median Income, adjusted for Actual
Househo ld Size.
(k)"Forty Percent Units" means the Units which, pursuant to Section 2.1(b)
below, are required to be occupied by Forty Percent Income Households.
(l)"High HOME Rent" means a monthly Rent amount not exceeding the
maximum rent published by HUD for a Low Income Household fo r the applicable bedroom size
as set forth in 24 C.F.R. 92.252(a).
(m)"HOME" means Ho me Investment Partnerships Act Program funded
pursuant to the Cranston-Gonzales National Housing Act of 1990.
(n)"HOME Regulations" means the regulations governing the use of HOME
Funds as set forth in 24 C.F.R. 92 et seq.
(o)"HOME Term" means the period beginning on the date of this Agreement
and ending on the twentieth (20th) anniversary of the date of this Agreement.
(p)"HUD" means the United States Department of Housing and Urban
Development.
(q)"Loan" has the meaning set forth in Paragraph D of the Recitals.
(r)"Loan Agreement" has the meaning set forth in Paragraph D of the
Recitals.
(s)"Low HOME Rent" means a monthly Rent amount not exceeding the
maximum rent published by HUD for a Very Low Income Househo ld fo r the applicable bedroom
size as set forth in 24 C.F.R. 92.252(b).
(t)"Low Income Household" means a Tenant household with an Adjusted
Inco me that does not exceed eighty percent (80%) of Median Income, with adjust me nt s for
smaller and larger families, except that HUD may establish income ceilings higher or lower than
eight y percent (80%) of Median Income on the basis of HUD findings that such variations are
necessary because of prevailing levels of constructio n costs or fair market rents, or unusually
high or low family inco me s, as such definit io n may be amended pursuant to 24 C.F.R. Section
92.2.
4
863\83\854731.4
(u)"Median Inco me" means the median gross yearly income, adjusted for
Actual Househo ld Size as specified herein, in the County of Contra Costa, California, as
published fro m time to time by HUD. In the event that such income determinations are no
lo nger published, or are not updated for a period of at least eighteen (18) months, the County
shall provide the Borrower with other income determinations that are reasonably similar wit h
respect to methods of calculat io n to those previously published by HUD.
(v)"Note" means the promissory note that evidences Borrower's obligat io n to
repay the Loan.
(w)"Property" has the meaning set forth in Paragraph C of the Recitals.
(x)"Rent" means the total mont hly payments by the Tenant of a Unit for the
fo llo wing: use and occupancy of the Unit and land and associated facilit ies, including parking;
any separately charged fees or service charges assessed by the Borrower which are required of
all Tenants, other than security deposits; an allowance for the cost of an adequate level of service
fo r utilit ies paid by the Tenant, including garbage collectio n, 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 ent it y other than the Borrower, and paid by the Tenant.
(y)"Tenant" means the tenant househo ld that occupies a Unit in the
Development.
(z)"Term" means the term of this Agreement, which shall commence on the
date of this Agreement and continues unt il the fift y-fift h (55th) anniversary of the date of this
Agreement.
(aa)"Unit(s)" means one (1) or more of the units in the Development.
(bb)"Very Low Income Househo ld" means a househo ld with an Adjusted
Inco me that does not exceed fift y percent (50%) of Median Income, with adjustments for smaller
and larger families, except that HUD may establish income ceilings higher or lower than fift y
percent (50%) of Median Income on the basis o f HUD findings that such variations are necessary
because of prevailing levels of construction costs or fair market rents, or unusually high or low
family inco me s, as set forth in 24 C.F.R. Section 92.2.
ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a)Extremely Low Income Unit s. During the Term, Borrower shall rent nine
(9) Units and ensure that these Units are occupied by or, if vacant, available for occupancy by
Extremely Low Income Househo lds.
5
863\83\854731.4
(b)Forty Percent Income Units. During the Term, Borrower shall rent two (2)
Units, and ensure that these Units are occupied by or, if vacant, available for occupancy by Forty
Percent Income Households.
(c)Intermingling of Units.The County-Assisted Unit s are 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 co mmo n fa cilit ies in the Development. The distribution of
the Extremely Low Income Units and Forty Percent Income Units by bedroom-size is to be as
fo llo ws:
Extremely
Low
Forty
Percent
Total
One Br. Unit 0 2 2
Two Br. Unit 4 0 4
Three Br. Unit 3 0 3
Four Br. Unit 2 0 2
Total 9 2 11
(d)Disabled Persons Occupancy.The Borrower shall cause the Development
to be operated at all times in comp liance wit h the 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, and (v) any other applicable law or
regulat io n (including the Americans Wit h Disabilities Act, to the extent applicable to the
Development). Borrower shall indemnify, protect, hold harmless and defend (with counsel
reasonably satisfactory to County) County, and its boardmembers, officers and employees, fro m
all suits, actions, claims, causes of act io n, costs, demands, judgments and liens arising out of
Borrower's failure to comply wit h applicable legal requirements related to housing for persons
with disabilities. The provisio ns of this subsection will survive expiratio n of the Term or other
termination of this Agreement, and remain in full force and effect.
2.2 Allowable Rent.
(a)Extremely Low Income Rent.Subject to the provisions of Section 2.3
below, the Rent paid by Tenants of Extremely Low Income Units, may not exceed one-twelft h
(1/12th) of thirty percent (30%) of thirty percent (30%) of Median Income, adjusted for Assumed
Househo ld Size.
(b)Forty Percent Income Rent.Subject to the provisions of Section 2.3
below, the Rent paid by Tenants of Forty Percent Inco me Units, may not exceed one-twelft h
(1/12th) of thirty percent (30%) of forty percent (40%) of Median Income, adjusted for Assumed
Househo ld Size.
6
863\83\854731.4
(c)No Additional Fees.The Borrower may not charge any fee, other than
Rent, to any Tenant of the County-Assisted Unit s for any housing or other services provided by
Borrower.
2.3 Rent Increases; Increased Income of Tenants.
(a)Rent Increases.The init ial Rents and subsequent Rents for all County-
Assisted Units must be approved by the Count y prior to occupancy and are subject to the HOME
regulat io ns. All Rent increases for all County-Assisted Units are also subject to County
approval, which approval will be granted if the desired increase is in conformance with this
Agreement. Subject to Subsect io n (d) below, the Rent for such Units may be increased no more
than once annually. Tenants are to be given at least sixt y (60) days written notice prior to any
Rent increase. The County will provide the Borrower with a schedule of maximum permissible
Rents for the County-Assisted Units annually.
(b)Increased inco me above Forty Percent Income but below Very Low
Inco me Limit. Subject to Subsect io n (a) above, if, upon the annual cert ification of the income of
a Tenant of a County-Assisted Unit, the Borrower determines that the income of an Extremely
Low Income Househo ld or Forty Percent Income Househo ld has increased above the qualifying
limit for a Forty Percent Income Househo ld, but not above the qualifying income fo r a Very Low
Inco me Househo ld, the Tenant may continue to occupy the Unit and the Tenant's Rent may be
increased to the Low HOME Rent. The Borrower shall then rent the next available Unit to an
Extremely Low Inco me Househo ld or Forty Percent Income Household, as applicable, to comply
with the requirements of Sect io n 2.1 above, at a Rent not exceeding the maximum Rent specified
in Section 2.2, or re-designate another comparable Unit in the Development with an Extremely
Low Income Househo ld or Forty Percent Income Househo ld, as applicable, a County-Assisted
Unit, to comply wit h the requirements of Section 2.1 above.Upon renting the next available
Unit in accordance with Section 2.1 or re-designat ing another Unit in the Development as a
County-Assisted Unit, the Unit with the over-income Tenant will no longer be considered a
County-Assisted Unit.
(c)Increased inco me above Very Low but below Low Income Limit. Subject
to Subsect io n (a) above, if, upon the annual certification of the income of a Tenant of a County-
Assisted Unit, the Borrower determines that the income of an Extremely Low Income Household
or Forty Percent Income Household has increased above the qualifying limit for a Very Low
Inco me Househo ld, but not above the qualifying income for a Low Income Household, the
Tenant may cont inue to occupy the Unit and the Tenant's Rent may be increased to the High
HOME Rent. The Borrower shall then rent the next available Unit to an Extremely Low Income
Househo ld 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 re-
designate another comparable Unit in the Development with an Extremely Low Income
Househo ld or Forty Percent Income Household, as applicable, a County-Assisted Unit, to
comply with the requirements of Section 2.1 above.Upon renting the next available Unit in
accordance with Sect io n 2.1 or re-designat ing another Unit in the Development as a County-
Assisted Unit, the Unit with the over-inco me Tenant will no longer be considered a County-
Assisted Unit.
7
863\83\854731.4
(d)Non-Qualifying Household.If, upon the annual certificatio n of the inco me
a Tenant of a County-Assisted Unit, the Borrower determines that the inco me of an Extremely
Low Income Househo ld or Forty Percent Income Househo ld has increased above the qualifying
limit for a Low Income Household, such Tenant shall be permitted to retain the Unit and upon
expirat io n of the Tenant's lease and upon sixt y (60) days written notice, the Rent must be
increased to the lesser of one-twelfth (1/12th)of thirty percent (30%) of the actual Adjusted
Inco me of the Tenant, or fair market rent (subject to 24 C.F.R. 92.252(i)(2) regarding low
inco me housing tax credit requirements), and the Borrower shall rent the next available Unit to
an Extremely 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 re-designate another comparable Unit in the Development with an
Extremely Low Income Househo ld or Forty Percent Income Household, as applicable, as a
County-Assisted Unit, to meet the requirements of Section 2.1 above. Upon renting the next
available Unit in accordance with Section 2.1 or re-designat ing another Unit in the Development
as a County-Assisted Unit, the Unit with the over-inco me Tenant will no longer be considered a
County-Assisted Unit.
(e)Terminat io n of Occupancy.Upon terminat io n 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 inco me level o f the vacating Tenant, until such unit is
reoccupied, at which time categorizat io n of the Unit will be established based on the occupancy
requirements of Sect io n 2.1.
2.4 Units Available to the Disabled.Borrower shall rehabilitate the Development in
compliance with all applicable federal and state disabled persons accessibilit y requirements
including but not limited to the Federal Fair Housing Act; Section 504 of the Rehabilitatio n Act
of 1973 (29 U.S.C. 794); Title II and/or Title III of the Americans with Disabilities Act of 1990;
and Title 24 of the California Code of Regulat io ns.
ARTICLE 3
INCOME CERTIFICATION AND REPORTING
3.1 Inco me Certificat io n. Bo rrower shall obtain, complete, and maintain on file,
immediately prior to initial occupancy and annually thereafter, income certificat io ns 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 certificat io n. To verify the informat io n Borrower shall take two or more of
the fo llo wing 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 inco me verificat io n fo rm from the applicant's current emplo yer; (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. Copies of Tenant income certificat io ns are to be available to the County upon
request.
8
863\83\854731.4
3.2 Reporting Requirements. Borrower shall submit to the County (a) not later than
the forty-fifth (45th) day after the close of each calendar year, or such other date as may be
requested by the County, a statist ical report, including income and rent data for all Units, setting
fo rth the informat io n called for therein, and (b) within fifteen (15) days after receipt of a written
request, 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 Addit io nal Informat io n. Borrower shall provide any additional informat io n
reasonably requested by the County.
3.4 Records. Borrower shall maintain comp lete, accurate and current records
pertaining to the Development, and shall permit any duly authorized representative of the County
to inspect records, including records pertaining to income and household size of Tenants. All
Tenant lists, applicat io ns and wait ing lists relat ing to the Development are to be at all times: (i)
separate and ident ifiable fro m any other business of Borrower, (ii) maintained as required by the
County, in a reasonable condit io n fo r proper audit, and (iii) subject to examinatio n 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 o f all books, records or other documents of Borrower
that pertain to the Development.
3.5 HOME Record Requirements. For the period of the HOME Term all records
maintained by Borrower pursuant to Sections 3.2 and 3.4 above are to be (i) maintained in
compliance with all applicable HUD records and accounting requirements, and (ii) open to and
available for inspect io n and copying by HUD and its authorized representatives at reasonable
int ervals during normal business hours; provided however, records pertaining to Tenant income
verifications, Rents, and Development inspectio ns are subject to HUD inspection for five (5)
years after expirat io n of the HOME Term. Borrower is subject to the audit requirements set
fo rth in 24 C.F.R. 92.505 during the HOME Term.
3.6 On-Site Inspect io n. The County may perform an on-site inspect io n of the
Development at least one (1) time per year. Borrower shall cooperate in such inspectio n.
ARTICLE 4
OPERATION OF THE DEVELOPMENT
4.1 Resident ia l Use. Borrower shall operate the Development for residential use
only. No part of the Development may be operated as transient housing.
4.2 Taxes and Assessments. Bo rrower shall pay all real and personal property taxes,
assessments and charges and all franchise, income, employment, old age benefit, withholding,
sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to
prevent any penalty from accruing, or any lien or charge from attaching to the Property;
provided, however, that Borrower may contest in good faith, any such taxes, assessments, or
charges. In the event Borrower exercises its right to contest any tax, assessment, or charge
against it, Borrower, on final determinatio n of the proceeding or contest, will immediately pay or
9
863\83\854731.4
discharge any decision or judgment rendered against it, together with all costs, charges and
int erest.
4.3 Property Tax Exempt io n. Borrower shall not apply for a property tax exemption
fo r the Property under any provision of law except California Revenue and Taxatio n Section
214(g) without the prior written consent of the Count y.
ARTICLE 5
PROPERTY MANAGEMENT AND MAINTENANCE
5.1 Management Responsibilit ies. The Borrower is responsible for all management
funct io ns with respect to the Development, including without limitatio n the select io n of Tenants,
certification and recertificatio n of househo ld size and income, evict io ns, collect io n of rents and
deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital
it ems, and securit y. The County has no responsibilit y fo r management of the Development. The
Borrower shall retain a professional property management company approved by the Count y in
it s reasonable discret io n to perform Borrower's management duties hereunder. An on-site
property manager is also required.
5.2 Management Agent. The Borrower shall cause the Development to be managed
by an experienced management agent reasonably acceptable to the County, with a demonstrated
abilit y to operate residential facilit ies like the Development in a manner that will provide decent,
safe, and sanitary housing (the "Management Agent"). The Borrower shall submit for the
County's approval the identit y of any proposed management agent. The Borrower shall also
submit such addit io nal informat io n about the background, experience and financial conditio n o f
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 the
Borrower in writ ing. Unless the proposed management agent is disapproved by the Count y
within thirt y (30) days, which disapproval is to state with reasonable specificit y the basis for
disapproval, it shall be deemed approved. The Count y hereby approves BRIDGE Property
Management Company as the init ial Management Agent.
5.3 Periodic Performance Review. County reserves the right to conduct an annual (or
mo re frequent ly, if deemed necessary by Count y) review of the management practices and
financial status of the Development. The purpose of each periodic review will be to enable
County to determine if the Development is being operated and managed in accordance with the
requirements and standards of this Agreement. The Borrower shall cooperate with 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 Agreement,
County shall deliver notice to Borrower of its intention to cause replacement of the Management
Agent, including the reasons therefore. Within fifteen (15) days after receipt by Borrower of
10
863\83\854731.4
such written notice, Count y staff and the Borrower shall meet in good faith to consider methods
fo r improving the financial and operating status of the Development, including, without
limitation, replacement of the Management Agent.
If, after such meet ing, County staff recommends in writ ing the replacement of the
Management Agent, Borrower shall prompt ly dismiss the then-current Management Agent, and
shall appo int as the Management Agent a person or entit y meet ing the standards for a
management agent set forth in Sectio n 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
provisio ns of this Sect io n const it ut es a default under this Agreement, and the County may
enforce this provisio n through legal proceedings as specified in Sectio n 6.8 below.
5.5 Approval o f Management Policies. The Borrower shall submit its written
management policies wit h 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 Agreement.
5.6 Property Maintenance. The Borrower shall maintain, for the entire Term of this
Agreement, all interior and exterior Improvements, including landscaping, on the Property in
good condition and repair (and, as to landscaping, in a healt hy condit io n) and in accordance with
all applicable laws, rules, ordinances, orders and regulat io ns of all federal, state, county,
municipal, and other governmental agencies and bodies having or claiming jurisdictio n and all
their respect ive departments, bureaus, and officials, and in accordance with the follo wing
maintenance condit io ns:
County places prime importance on quality maintenance to protect its investme nt and to
ensure that all Count y and Count y-assisted affordable housing projects within the County are not
allowed to deteriorate due to below-average maint enance. Normal wear and tear of the
Development will be acceptable to the County assuming Borrower agrees to provide all
necessary improvements to assure the Development is maintained in good condit io n. The
Borrower shall make all repairs and replacements necessary to keep the improvements in good
condition and repair.
In the event that the Borrower breaches any of the covenants contained in this sect io n and
such default continues for a period of five (5) days after written notice from Count y with respect
to graffit i, debris, waste material, and general maintenance or thirty (30) days after written notice
fro m Count y with respect to landscaping and building improvements, then County, in addit io n 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 default.
Pursuant to such right of entry, 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
11
863\83\854731.4
protection, maintenance, and preservat io n by County and/or costs of such cure, which amount
shall be prompt ly paid by the Borrower to County upon demand.
ARTICLE 6
MISCELLANEOUS
6.1 Lease Provisio ns. Borrower shall use a form of lease approved by the Count y
when leasing any Count y-Assisted Unit s within the Development. The lease must not contain
any provisio n which is prohibited by 24 C.F.R. Section 92.253(b) and any amendments thereto.
The form o f lease must comply with all requirements of this Agreement, the Loan Agreement,
and must, among other matters:
(a)provide for termination of the lease for failure to: (i) provide any
informat io n required under this Agreement or reasonably requested by Borrower to establish or
recertify the Tenant's qualificat io n, or the qualification of the Tenant's househo ld, for occupancy
in the Development in accordance with the standards set forth in this Agreement, or (ii) qualify
as an Extremely Low Income Household or Forty Percent Income Household as a result of any
material misrepresentation made by such Tenant wit h respect to the income co mputation.
(b)be fo r an init ial 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 init ial year of tenancy, the lease may be mo nt h-to-mo nt h by mutual agreement of
Borrower and the Tenant. Notwithstanding the above, any rent increases are subject to the
requirements of Sect io n 2.3 (a) above.
(c)include a provisio n which requires a Tenant who is residing in a Unit
required to be accessible pursuant to Section 2.4 and who is not in need of an accessible Unit to
mo ve to a non-accessible Unit when a non-accessible Unit become s available and another Tenant
or prospective Tenant is in need of an accessible Unit.
6.2 Lease Terminat io n. Any terminat io n of a lease or refusal to renew a lease for a
County-Assisted Unit within the Development must be in conformance with 24 C.F.R.
92.253(c), and must be preceded by not less than sixty (60) days written notice to the Tenant by
the Borrower specifying the grounds for the action.
6.3 Nondiscriminat io n.
(a)All o f 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 rent ing or selling the Units, except to the extent that
the Units are required to be leased to income eligible househo ld s pursuant to this Agreement.
The Borrower herein covenants by and for Borrower, assigns, and all persons claiming under or
through the Borrower, that there exist no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religio n, sex, sexual orientation, marital status,
nat io nal origin, source of income (e.g., SSI), ancestry, or disability, in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of any unit nor will Borrower or any person
12
863\83\854731.4
claiming under or through Borrower, establish or permit any such practice or practices of
discriminat io n or segregation with reference to the select io n, location, number, use, or
occupancy, of tenants, lessees, sublessees, subtenants, or vendees of any unit or in connectio n
with the employment of persons for the construction, operation and management of any unit.
(b)The 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 exist ing housing program under Section 8 of the United States Housing Act, or its
successor. The Borrower may not apply select io n criteria to Section 8 certificate or voucher
ho lders that is more burdensome than criteria applied to all other prospective Tenants, nor will
the Borrower apply or permit the applicat io n of management policies or lease provisions with
respect to the Development which have the effect of precluding occupancy of units by such
prospective Tenants.
6.4 Term. The provisions of this Agreement apply to the Property for the ent ir e Term
even if the Loan is paid in fu ll prior to the end of the Term. This Agreement binds any
successor, heir or assign of Borrower, whether a change in interest occurs voluntarily or
invo luntarily, by operation of law or otherwise, except as expressly released by Count y. County
is making the Loan on the condit io n, and in consideration of, this provision, and would not do so
otherwise.
6.5 Compliance with Loan Agreement and Program Requirements. Borrower's
actions with respect to the Property shall at all times be in full conformit y with: (i) all
requirements of the Loan Agreement; and (ii) all requirements imposed on projects assisted
under the HOME Invest me nt Partnerships Act Program as contained in 42 U.S.C. Section 12701,
et seq., 24 C.F.R. Part 92, and other implementing rules and regulat io ns.
6.6 Notice of Expirat io n of Term.
(a)At least six (6) months prior to the expiratio n of the Term, Borrower shall
provide by first-class mail, postage prepaid, a notice to all Tenants containing (i) the antic ipated
date of the expirat io n of the Term,(ii) any ant ic ipated increase in Rent upon the expiratio n 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 wit h the Deputy Director –Redevelopment of the
County.
(b)In addit io n to the notice required above, Borrower shall co mp ly 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), which would include the County Housing Director) prior to the expirat io n of the
Term, (ii) a six (6) month notice requirement to exist ing tenants, prospective tenants and
Affected Public Agencies prior to the expiration o f the Term; (iii) a notice of an offer to purchase
the Development to "qualified entitie s" (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
13
863\83\854731.4
notice of right of first refusal wit hin the one hundred eighty (180) day period that qualified
ent it ies may purchase the Development.
6.7 Covenants to Run Wit h the Land. The County and Borrower hereby declare their
express intent that the covenants and restrict io ns set forth in this Agreement run with the land,
and bind all successors in tit le to the Property, provided, however, that on the expiration of the
Term of this Agreement 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 restrict io ns 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 Agreement.
6.8 Enforcement by The Count y. If Borrower fails to perform any obligatio n under
this Agreement, and fails to cure the default within thirt y (30) days after the County has notified
Borrower in writ ing of the default or, if the default cannot be cured within thirty (30) days, fails
to commence to cure within thirty (30) days and thereafter diligent ly pursue such cure and
complete such cure within ninet y (90) days, the Count y ma y enforce this Agreement by any or
all o f the follo wing actions, or any other remedy provided by law:
(a)Calling the Loan. The County may declare a default under the Note,
accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed
of Trust.
(b)Act io n to Compel Performance or for Damages. The Count y ma y br ing
an act io n at law or in equity to compel Borrower's performance of its obligat io ns under this
Agreement, and may seek damages.
(c)Remedies Provided Under Loan Agreement. The County may exercise
any other remedy provided under the Loan Agreement.
6.9 At torneys’ Fees and Costs. In any act io n brought to enforce this Agreement,the
prevailing party must be ent it led to all costs and expenses of suit, including reasonable attorneys'
fees. This sect io n mu st be interpreted in accordance with California Civil Code Section 1717
and judicial decisions int erpreting that statute.
6.10 Recording and Filing. The County and Borrower shall cause this Agreement, and
all amendments and supplements to it, to be recorded in the Official Records of the County of
Contra Costa.
6.11 Governing Law. This Agreement is governed by the laws of the State of
California.
6.12 Waiver of Requirements. Any o f the requirements of this Agreement may be
expressly waived by the County in writing, but no waiver by the Count y of any requirement of
14
863\83\854731.4
this Agreement extends to or affects any other provision of this Agreement, and may not be
deemed to do so.
6.13 Amendments. This 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.
6.14 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 follo ws:
County: County of Contra Costa
Department of Conservat io n and Development
2530 Arno ld Drive, Suite 190
Martinez, CA 94553
At tn: Deputy Director-Redevelopment
Borrower:BRIDGE Regional Partners, Inc.
345 Spear Street, Suite 700
San Francisco, CA 94105
At tention: President
Such addresses may be changed by notice to the other party given in the same manner as
provided above.
6.15 Severabilit y. If any provision o f this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and
enforceabilit y of the remaining portions of this Agreement will not in any way be affected or
impaired thereby.
6.16 Multiple Originals; Counterparts. This Agreement may be executed in multiple
originals, each of which is deemed to be an original, and may be signed in counterparts.
6.17 Revival o f Agreement after Foreclosure.
In the event there is a foreclosure of the Property this Agreement will revive according to
it s original terms if, during the Term, the owner of record before the foreclosure, or deed in lieu
of foreclosure, or any ent it y 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.
[Remainder of Page Left Intentionally Blank]
15
Signature page
County Regulatory Agreement
863\83\854731.4
WHEREAS, this Agreement has been entered into by the undersigned as of the date first
written above.
COUNTY:
COUNTY OF CONTRA COSTA, a polit ical
subdivisio n of the State of California
By: _________________________________
James Kennedy
Deputy Director -Redevelopment
Approved as to form:
SHARON L. ANDERSON
County Counsel
By:
Kathleen Andrus
Deputy Count y Counsel
BORROWER:
BRIDGE REGIONAL PARTNERS, INC., a
California nonprofit public benefit corporation
By: ___________________________
Its: __________________________
863\83\854731.4
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satis factory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the ent it y upon behalf of which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
fo regoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________(seal)
STATE OF CALIFORNIA )
)
COUNTY OF CONTRA COSTA )
On ____________ __, 2010, before me, _______________, Notary Public, personally appeared,
who proved to me on the basis of satis factory evidence to be the person(s) whose name is
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity, and that by his/her/their signature on the instrument the
person, or the ent it y upon behalf o f which the person acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
fo regoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ________________________________(seal)
A-1
863\83\854731.4
EXHIBIT A
Legal Descript io n
The land is situated in the State of California, County of Contra Costa, and is described as
fo llo ws: