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HomeMy WebLinkAboutMINUTES - 03252014 - C.86 1 ASSIGNMENT AGREEMENT (Collateral for Heritage Point Technical Assistance Loan Agreement) This assignment agreement (“Agreement”) is dated ___________, 2014 and is between the County of Contra Costa, a political subdivision of the State of California (the "County") and Community Housing Development Corporation of North Richmond, a California nonprofit public benefit corporation ("Borrower"). RECITALS A. The County is lending Borrower up to Forty-Eight Thousand Dollars ($48,000) in HOME Funds (the “Loan”) pursuant to a Technical Assistance Loan Agreement of even date herewith (the “Loan Agreement”). All capitalized terms used but not defined in this agreement have the meanings set forth in the Loan Agreement. B. Borrower intends to use the proceeds of the Loan to assess the feasibility of constructing rental housing affordable to low-income households on certain property owned by the County in North Richmond (the “Development”). In connection with its assessment of the feasibility of constructing the Development, Borrower will be (i) a party to various contracts, and (ii) the owner or beneficiary of various plans and specifications, shop drawings, working drawings, reports, studies, approvals, permits, and entitlements, including the Phase I soils report (together, the “Collateral Documents”). C. In consideration of the Loan, Borrower is assigning to County all of Borrower’s right, title, interest, claims and demands of Borrower in and to the Collateral Documents, including contract rights and general intangibles, now existing or hereafter arising, and all amendments, substitutions for, and proceeds thereof, including, without limitation, insurance and similar payments (together, the “Collateral”) on the terms and conditions set forth in this Agreement. The parties therefore agree as follows: AGREEMENT 1. Borrower hereby pledges the Collateral to the County to secure repayment of the Loan (the “Assignment”). The Assignment creates an immediate assignment to the County of all of Borrower’s right, title and interest in the Collateral. 2. By its acceptance of the Assignment, and so long as no Event of Default has occurred and is continuing under the Loan Agreement, the County hereby grants to Borrower a revocable license to Borrower to enforce the Collateral Documents. Upon (i) the occurrence and during the continuance of an Event of Default, or (ii) the termination of the Loan Agreement for any reason, the County may revoke the license granted to Borrower hereunder by giving written 2 notice to Borrower of such revocation. If the license is revoked, the County will thereafter be entitled to enforce the Collateral Documents. 3. Borrower shall execute any additional documentation requested by the County to effectuate the Assignment. Borrower may not enter into or consent to any amendment, modification or termination of any of the Collateral Documents without the prior written consent of the County. 4. Borrower shall cause any architect, contractor, engineer, consultant or other person or entity that (i) enters into any contracts with the Borrower related to the construction of the Development, or (ii) prepares any reports, or plans and specifications related to the construction of the Development to consent to the Assignment. Borrower shall cause the architect’s consent to the Assignment to be in substantially the form of Exhibit A – Architect’s Consent, and the consent of all other parties that have an interest in any Collateral to be in substantially the form of Exhibit B – Consultant’s Consent. 5. Borrower shall execute any further documentation (including, without limitation, a UCC-1 Financing Statement) and do such further acts necessary to perfect the County’s security interest in the Collateral. 6. Borrower hereby represents and warrants to the County that Borrower has full right, title and interest in and to the Collateral Documents, and the Collateral Documents are not subject to any security interest, lien or encumbrance of any kind except in favor of the County. Borrower hereby represents that it has delivered true and correct copies of the Collateral Documents to the County. 7. Neither this Assignment nor any action by the County constitutes an assumption by the County of any of Borrower’s obligations or duties under any Collateral Documents, including, but not limited to, the obligation to pay for the preparation of any Collateral Documents. The Borrower continues to be liable for all obligations under the Collateral Documents. The County's acceptance of this Assignment does not constitute approval of the Collateral Documents by the County. 8. This agreement is governed by the laws of the State of California. 9. This Agreement binds and inures to the benefit of the heirs, legal representatives, successors-in-interest, and assigns of Borrower and the County. [Remainder of this page intentionally left blank.] Assignment Agreement Signature Page 3 10. This Agreement may be executed in counterparts by the parties hereto, each of which will be deemed to be an original, and all such counterparts will constitute one and the same instrument. The parties are executing this Agreement as of the date first above written. BORROWER: COMMUNITY HOUSING DEVELOPMENT CORPORATION OF NORTH RICHMOND, a California nonprofit public benefit corporation By:__________________________ Name:_______________________ Its: _________________________ COUNTY: COUNTY OF CONTRA COSTA, a political subdivision of the State of California By: ________________________________ Catherine O. Kutsuris Director, Department of Conservation and Development Approved as to form: Sharon L. Anderson County Counsel By:_____________________ Kathleen Andrus Deputy County Counsel Consent to Assignment of Project Documents A-1 EXHIBIT A ARCHITECHT'S CONSENT (Heritage Point) YHLA Architects, a California Corporation, (“Architect”) hereby consents to the assignment by Community Housing Development Corporation of North Richmond (“CHDC”) to the County of Contra Costa (the “County”) of all documents and materials that relate to the development of rental housing affordable to low-income households and attendant site improvements that CHDC intends to construct at Assessor Parcels Nos., 409-080- 001,020,016,015,014, and 013, located within the 1500 block of Fred Jackson Way, North Richmond (the “Project”), including all of the following: (i) architectural design, construction, engineering and consulting contracts and development agreements that are entered into by CHDC and Architect in connection with the Project and any and all amendments, modifications, supplements, addenda and general conditions thereto (together, the “Architect Contracts”), and (ii) all plans and specifications, shop drawings, working drawings, reports, studies, amendments, modifications, changes, supplements, general conditions, addenda and work product thereto that are prepared by Architect in connection with the Project (together, the “Architect Documents”). Architect acknowledges that there are presently no unpaid claims or amounts due to the undersigned in connection with the Project. The undersigned agrees that if, at any time, the County elects to undertake or cause the completion of the Architect Documents and gives the undersigned written notice of such election, then so long as the undersigned has received, receives, or continues to receive the compensation called for under the Architect Contracts, the County may, at its option, use and rely on the Architect Documents for the purposes for which they are prepared and the undersigned will continue to perform its obligations under the Architect Contracts for the benefit and account of the County in the same manner as if performed for the benefit or account of CHDC in the absence of the assignment to the County. The undersigned further agrees that, in the event of a default by CHDC under the Architect Contracts, or any agreement entered into with the undersigned in connection with the Architect Documents, so long as CHDC's interest in the Architect Contracts and Architect Documents is assigned to the County, the undersigned will give written notice to the County of such default. The County will have thirty (30) days from the receipt of such written notice to remedy or cure the default; provided, however, nothing herein requires the County to cure the default. Notices to the undersigned are to be sent to: YHLA Architects 1617 Clay Street Oakland, CA 94612 Attn: Yui Hay Lee Consent to Assignment of Project Documents A-2 The undersigned represents that it has no knowledge of any prior assignment(s) of any interest in either the Architect Contracts or the Architect Documents. Executed on ____________, 2014 YHLA Architects By: ______________________________ Name: ____________________________ Its: _______________________________ Title and Date of Architect Contracts: Consent to Assignment of Project Documents B-1 EXHIBIT B CONSULTANT'S CONSENT (Heritage Point) ____________ (“Consultant”) hereby consents to the assignment by Community Housing Development Corporation of North Richmond (“CHDC”) to the County of Contra Costa (the “County”) of all documents and materials prepared by Consultant that relate to the development of rental housing affordable to low-income households and attendant site improvements that CHDC intends to construct at Assessor Parcels Nos., 409-080-001,020,016,015,014, and 013, located within the 1500 block of Fred Jackson Way, North Richmond (the “Project”), including all of the following: (i) contracts and agreements that are entered into by CHDC and Consultant in connection with the Project and any and all amendments, modifications, supplements, and addenda (together, the “Consultant Contracts”) and (ii) all reports, studies, amendments, modifications, changes, supplements, and work product thereto that are prepared by Consultant in connection with the Project (together, the “Consultant Documents”). Consultant acknowledges that there are presently no unpaid claims or amounts due to the undersigned in connection with the Project. The undersigned agrees that if, at any time, the County elects to undertake or cause the completion of the Consultant Documents and gives the undersigned written notice of such election, then so long as the undersigned has received, receives, or continues to receive the compensation called for under the Consultant Contracts, the County may, at its option, use and rely on the Consultant Documents for the purposes for which they are prepared, and the undersigned will continue to perform its obligations under the Consultant Contracts for the benefit and account of the County in the same manner as if performed for the benefit or account of CHDC in the absence of the assignment to the County. The undersigned further agrees that, in the event of a default by CHDC under the Consultant Contracts, or any agreement entered into with the undersigned in connection with the Consultant Documents, so long as CHDC's interest in the Consultant Contracts and Consultant Documents is assigned to the County, the undersigned will give written notice to the County of such default. The County will have thirty (30) days from the receipt of such written notice to remedy or cure the default; provided, however, nothing herein requires the County to cure the default. Notices to the undersigned are to be sent to: [Name] [Street] [City] Attn: ___________ The undersigned represents that it has no knowledge of any prior assignment(s) of any interest in the Consultant Documents. Consent to Assignment of Project Documents B-2 Executed on ____________, 2014 [INSERT COMPANY NAME] By: ______________________________ Name: ____________________________ Its: _______________________________ Title and Date of Consultant Contract(s) Consent to Assignment of Project Documents C-1 863\01\1371273.3 1 PROMISSORY NOTE (Heritage Point) $48,000 Martinez, California ____________, 2014 FOR VALUE RECEIVED, the undersigned Community Housing Development Corporation of North Richmond, a California nonprofit public benefit corporation, (the "Borrower") hereby promises to pay to the order of the County of Contra Costa, a political subdivision of the State of California ("Holder"), the principal amount of Forty-Eight Thousand Dollars ($48,000), plus interest thereon pursuant to Section 2 below. All capitalized terms used but not defined in this Note have the meanings set forth in the Loan Agreement. 1. Borrower's Obligation. This Note evidences Borrower's obligation to repay Holder the principal amount of Forty-Eight Thousand Dollars ($48,000) with interest for the funds loaned to Borrower by Holder to assess the feasibility of constructing rental housing affordable to low-income households pursuant to the Technical Assistance Loan Agreement between Borrower and Holder of even date herewith (the "Loan Agreement"). 2. Interest. (a) Subject to the provisions of Subsection (b) below, the Loan bears simple interest at a rate of three percent (3%) per annum from the date of disbursement until full repayment of the principal balance of the Loan. (b) If an Event of Default occurs, interest will accrue on all amounts due under this Note at the Default Rate until such Event of Default is cured by Borrower or waived by Holder. 3. Term and Repayment Requirements. Principal and interest under this Note is due and payable as set forth in Section 2.7 of the Loan Agreement. In any event, the unpaid principal balance, together with any accrued interest, is due and payable not later than December 31, 2014. 4. No Assumption. This Note is not assumable by the successors and assigns of Borrower without the prior written consent of Holder. 5. Collateral. As security for this Note, Borrower has assigned to Holder Borrower’s rights and obligations in and to various contracts and work products, which are more particularly described in the Assignment Agreement. The terms of the Assignment Agreement are hereby incorporated into this Note and made a part hereof. 6. Terms of Payment. (a) Borrower shall make all payments due under this Note in currency of the United States of America to Holder at Department of Conservation and Development, 30 Muir 863\01\1371273.3 2 Road, Martinez, CA 94553, Attention: Affordable Housing Program Manager, or to such other place as Holder may from time to time designate. (b) All payments on this Note are without expense to Holder. Borrower shall pay all costs and expenses, including reasonable attorney's fees of Holder, incurred in connection with the payment of this Note and the release of any security hereof. (c) All payments received will be applied first to accrued interest then to the outstanding principal amount. (d) Notwithstanding any other provision of this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest that exceeds the amount that Holder may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate will automatically be deducted from the principal balance owing on this Note, so that in no event is Borrower obligated under the terms of this Note to pay any interest that would exceed the lawful rate. (e) The obligations of Borrower under this Note are absolute and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever. 7. Event of Default; Acceleration. (a) Upon the occurrence of an Event of Default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note will, at the option of Holder, become immediately due and payable without further demand. (b) Holder's failure to exercise the remedy set forth in Subsection 7(a) above or any other remedy provided by law upon the occurrence of an Event of Default does not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other Event of Default. The acceptance by Holder of any payment that is less than the total of all amounts due and payable at the time of such payment does not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the express consent of Holder, except as and to the extent otherwise provided by law. 8. Waivers. (a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note. Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that Holder may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower. 863\01\1371273.3 3 (b) No extension of time for payment of this Note or any installment hereof made by agreement of Holder with any person now or hereafter liable for payment of this Note will operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part. 9. Miscellaneous Provisions. (a) All notices to Holder or Borrower are to be given in the manner and at the addresses set forth in the Loan Agreement, or to such addresses as Holder and Borrower may therein designate. (b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, regardless of whether suit is filed to seek enforcement. (c) This Note is governed by the laws of the State of California. (d) The times for the performance of any obligations hereunder are to be strictly construed, time being of the essence. (e) The Loan Documents, of which this Note is a part, contain the entire agreement between the parties as to the Loan. This Note may not be modified except upon the written consent of the parties. IN WITNESS WHEREOF, Borrower is executing this Promissory Note as of the day and year first above written. COMMUNITY HOUSING DEVELOPMENT CORPORATION OF NORTH RICHMOND, a California nonprofit public benefit corporation By:__________________________ Name:______________________ Its: _________________________ Remainder of  Page Intentionally Left Blank Loan Agreement Signature Page