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HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
TO: BOARD OF COMMISSIONERS
FROM: Richard J. Martinez, Executive Director
DATE: June 25, 1996
SUBJECT: COLUMBIA PARK MANOR: AUTHORIZATION TO EXECUTE 1)A FIRST AMENDMENT
TO A PURCHASE AGREEMENT TO SELL HOUSING AUTHORITY OWNED LAND TO
COLUMBIA PARK MANOR,INC; 2)A FIRST AMENDMENT TO FUNDING AND
REGULATORY AGREEMENT WITH COLUMBIA PARK MANOR, INC. FOR THE
DEVELOPMENT OF LOW INCOME SENIOR HOUSING; AND 3) TO EXECUTE AND
RECORD A GRANT DEED IN ACCORDANCE WITH THE PURCHASE AGREEMENT.
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
L RECOMMENDED ACTION:
AUTHORIZE the Executive Director to execute 1)a First Amendment to Purchase Agreement with
Columiba Park Manor, Inc. to sell a portion (Parcel "A") of Housing Authority owned property located at the end of
Chester Drive in Pittsburg, CA to Columbia Park Manor, Inc. (CPM), a non-profit corporation, for the development
of low income senior housing; and 2)a First Amendment to Funding and Regulatory Agreement with Columbia
Park Manor for the project; and 3)to execute and provide for the recordation of a Grant Deed for the parcel in
accordance with the Purchase Agreement. This authorization is subject to the review and approval as to form of all
documents by the County Counsel.
II. FINANCIAL IMPACT:
No County General Funds will be used. The project will be funded using HUD Section 202 and Housing
Authority funds.
III. REASONS FOR RECOMMENDATION/BACKGROUND
Pursuant to a Board Order approved on April 19, 1994,the Housing Authority entered into a Purchase
Agreement and a Funding and Regulatory Agreement with Columbia Park Manor,Inc., a non-profit corporation
formed by Pittsburg Preschool Coordinating Council,Inc. (PPCC)and Satellite Senior Homes, Inc., to provide for
the development of Columbia Park Manor, a low income senior housing development. The development will be
funded primarily by a$5.9 million grant from the HUD 202 program. In December 1995, CPM received word from
the HUD 202 program that both the Purchase Agreement and the Funding and Regulatory Agreements would have
to be amended to address various HUD concerns as a condition of the project receiving the HUD funding.
Negotiations regarding the impact of those concerns are now completed and the resultant Amendments and the
Grant Deed need to be executed prior to the HUD closing set for the first week of July 1996.
CONTINUED ON ATTACHMENT: X_YES SIGNATURE ` W 0 or
RECOMMENDATION OF EXECUTIVE DIRECTOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER
VOTE OF COMMISSIONER
I HEREBY CERTIFY THAT THIS IS A
7� UNANIMOUS (ABSENT ) TRUE AND CORRECT COPY OF AN
AYES: NOES: ACTION TAKEN AND ENTERED ON THE
ABSENT: ABSTAIN: MINUTES OF THE BOARD OF
COMMISSIONERS ON THE DATE SHOWN.
r. �'
ATTESTED , �i (p
HIL BATCHELOR,CLERK OF
THE BOARD OF COMMISSIONERS
AND COUNTY ADMIINIIS'TRATOR
BY V 'DEPUTY
The following amendments and clarifications were made to address HUD's concerns:
1. The Funding and Regulatory Agreement is subject and subordinate to the HUD Section 202
Agreements for the project so long as such HUD documents are in effect. The Housing Authority
shall request and receive written consent of HUD prior to amending or assigning the Agreement or
declaring a default under the Agreement.
2. The rights of the Authority to insurance proceeds pursuant to any claim shall be subordinate to the
rights of HUD so long as HUD is the holder of the Deed or the HUD Capital Advance Program
Agreements are in effect.
3. The Housing Authority has the right to exercise its power of termination for default under the
agreements but will not exercise that right so long as specific HUD documents encumber the
property.
4. Any utility or access easements necessary for the development of the project shall be executed at
the escrow closing and shall be consistent with the development plans approved by HUD and the
City of Pittsburg.
The Grant Deed will contain certain of the provisions stated in the Purchase Agreement, as amended, and
title to the property will be conveyed to Columbia Park Manor, Inc. at the close of escrow.
IV. CONSEQUENCES OF NEGATIVE ACTION:
Should the Board of Commissioners elect to not to authorize the execution of the Amendments and the
execution and recordation of the Grant Deed, HUD will not fund the 79 units of low and moderate income senior
housing.
FIRST AMENDMENT
TO
FUNDING AND REGULATORY AGREEMENT
BETWEEN
THE HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA
AND COLUMBIA PARK MANOR
FOR THE DEVELOPMENT OF SENIOR HOUSING
THIS FIRST AMENDMENT TO FUNDING AND REGULATORY AGREEMENT
(the "First Amendment") is made and entered into as of this __ day of
, 1996, by and between the HOUSING AUTHORITY OF THE COUNTY OF
CONTRA COSTA, a public body corporate and politic (the "Authority") and COLUMBIA
PARK MANOR, a California nonprofit public benefit corporation (the "Developer").
RECITALS
WHEREAS, Authority and Developer entered into that certain Funding and
Regulatory Agreement dated April 19, 1994 (the "Funding and Regulatory Agreement")
in conjunction with the execution of that certain Purchase Agreement effective April 15,
1994 for the sale and purchase, respectively, of certain real property located in the
County of Contra Costa, California as more particularly described in said Purchase
Agreement (the "Land"), and for the purpose of providing financial assistance to
Developer for the purpose of the development of a 79-unit senior housing facility for
people of low or moderate income, as defined by Health and Safety Code section 50093
(the "Project") and of imposing certain covenants against the Developer and the Project
that shall run with the Land (the "Covenants"); and
WHEREAS, the Project is to be financed primarily by the Secretary of Housing
and Urban Development (the "Secretary") pursuant to a grant (the "Capital Advance")
under Section 202 of the Housing Act of 1959, as amended; and
WHEREAS, the Secretary has objected to the Funding and Regulatory Agreement
with respect to the Covenants, and the Secretary has advised Developer that the Funding
and Regulatory Agreement should be amended as a condition to the funding of the Capital
Advance;and
WHEREAS, Developer has advised Authority of the Secretary's requirement that
the Funding and Regulatory Agreement be amended and Authority and Developer have
agreed that it is in their respective best interests to comply with the Secretary's
requirement to the fullest extent possible so that the development of- the Project is not
jeopardized.
1st Amendment-Funding/Regulatory Agr. 1
AGREEMENT
NOW THEREFORE, for and in consideration of the premises as stated herein and
for other valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, Authority and Developer hereby agree as follows:
FIRST. A new Paragraph 15, entitled "HUD REQUIREMENTS", is added to
the Funding and Regulatory Agreement, which reads as follows:
This Funding and Regulatory Agreement is subject and subordinate to a
Capital Advance Use Agreement, Deed of Trust and Regulatory Agreement
recorded or to be recorded in the Official Records of Contra Costa County
in the making of a capital advance for Supportive Housing for the Elderly
as they may be amended or superseded from time to time or title to the
Property is held by HUD. So long as such documents are in effect,
Authority agrees:
a. This Agreement may not be amended or assigned without
prior written consent of HUD.
b. The Property will be constructed and operated in
conformance with the provisions of Section 202 of the Housing Act of
1959, as amended, and all regulations and administrative requirements
relating to that statute. In the event of any conflict between this
Agreement and the provisions of any HUD regulations, related
administrative requirements or capital advance documents (including but
not limited to the Capital Advance Use Agreement, Mortgage Note, Deed of
Trust and Project Rental Assistance Contract), the HUD regulations,
related administrative requirements or capital advance documents shall
control.
C. Authority shall not declare a default under this Agreement
without the prior written consent of HUD.
d. Enforcement of the provisions of this Agreement shall not
result in any claim against the Property, the capital advance proceeds,
any reserve of deposit required by HUD in connection with the capital
advance, or the rents or other income from the Property other than
residual receipts authorized for release by HUD.
SECOND. Paragraph 7, COVENANTS RUNNING WITH THE LAND, of the
Funding and Regulatory Agreement, which reads as follows:
The Developer specifically understands and agrees that subsection (i) of
Health and Safety Code section 34312.3 shall apply to this Agreement.
That portion of the statute provides:
"Notwithstanding Section 1461 of the Civil Code, the
provisions of this section shall run with the land and may
be enforced either in laws or in equity by any resident,
1st Amendment-Funding/Regulatory Agr. 2
local agency, entity, or by any other person adversely
affected by an owner's failure to comply with the
provisions of this section."
is hereby deleted in its entirety.
THIRD. Paragraph 11, INDEMNITY AND HOLD HARMLESS, of the Funding
and Regulatory Agreement, which reads as follows:
Developer agrees to indemnify, protect, defend, save and hold harmless
Authority from and against any and all losses, liabilities, judgments,
claims, costs and expenses (including attorneys fees and disbursements),
actions or proceedings to attack, set aside, void, abrogate or annul this.
Agreement, the Grant or any act or approval of Authority related thereto.
Developer further agrees to indemnify, protect, defend, save and hold
harmless Authority from and against any and all losses, liabilities, suits,
obligations, damages, judgments, claims, costs and expenses (including
attorneys fees and disbursements), actions or proceedings caused by or
arising from or in connection with this Agreement, the Grant, or any act
of the Authority or the Developer related thereto, save and except claims
or litigation arising through the sole willful misconduct of Authority its
officers or employees.
The obligations of the GRANTEE to indemnify, protect and defend
the AUTHORITY under this paragraph shall be limited solely to the assets
of the GRANTEE, its heirs, successors and assigns and shall not be a
personal liability of any officer;- director, member, trustee or employee
of GRANTEE nor shall it be binding upon any corporation affiliated with
GRANTEE. However the obligations of the GRANTEE to hold the AUTHORITY
harmless from all of the demands, liabilities, losses, damages, claims,
costs, expenses, litigation, actions and/or proceedings described by this
section shall extend not only to GRANTEE but also to its officers,
directors, members, trustees, employees and affiliated corporations and
GRANTEE makes the promises to hold harmless set forth in this section on
behalf of itself and on behalf of the aforementioned officers, directors,
members, trustees employees and affiliated corporations.
is amended in its entirety to read as follows:
Developer agrees to indemnify, protect, defend, save and hold harmless
Authority from and against any and all losses, liabilities, judgments,
claims, costs and expenses (including attorneys fees and disbursements),
actions or proceedings to attack, set aside, void, abrogate or annul this
Agreement, the Grant or any act or approval of Authority related thereto.
Developer further agrees to indemnify, protect, defend, save and hold
harmless Authority from and against any and all losses, liabilities, suits,
obligations, damages, judgments, claims, costs and expenses (including
attorneys fees and disbursements), actions or proceedings caused by or
arising from or in connection with this Agreement, the Grant, or any act
of the Authority or the Developer related thereto, save and except claims
or litigation arising through the sole willful misconduct of Authority its
officers or employees.
1st Amendment-Funding/Regulatory Agr. 3
0. /00
The obligations of the Developer to indemnify, protect, defend and
hold harmless the Authority under this paragraph shall be. limited solely
to the assets of the Developer, its heirs, successors and assigns and shall
not be a personal liability of any officer, director, member, trustee or
employee of Developer or upon any corporation affiliated with Developer.
Provided, however, that. the Developer warrants and represents to the
Authority, on behalf of itself, its heirs, successors, assigns, officer,
directors, members, trustees, employees and affiliate corporations, with
the understanding that such representation and warranty is material and
is being relied upon by the Authority, that the Developer's officers,
directors, members, trustees, employees and affiliate corporations. are
not and shall not be considered parties to nor beneficiaries of this
Agreement nor shall such persons or entities ever claim, have or assert
any right or action against the Authority for any loss or damage or other
matter arising or resulting from this Agreement or any act or omission of
the Authority or the Developer hereunder.
The obligations contained in this section shall survive the
assignment, expiration or termination of this Agreement.
FOURTH. The property description in Recital A. ,which reads as follows:
"Approximately 2.99 acres of vacant land, the westerly portion of assessors
parcel 073-140-015 at Chester Drive, Pittsburg, California, shown as Parcel "B"
on Exhibit "A," and described in Exhibit "B" attached hereto and made a part
hereof."
is amended in its entirety to read as follows:
Approximately 2.99 acres of vacant land, the westerly portion of assessors
parcel.073-140-015 at Chester Drive, Pittsburg, California, shown as Parcel "A"
on Exhibit 'A" and described in Exhibit "B" attached hereto and made a part
hereof.
FIFTH. Exhibits "A" and "B" of the Funding and Regulatory Agreement are rescinded
and replaced with the Exhibits"A" and"B" attached hereto and made a part of this amendment.
Except as amended by this First Amendment, the terms of the Funding and Regulatory
Agreement shall and do remain in full force and effect.
This First Amendment shall be placed in Escrow and shall be recorded in the Official
Records of Contra Costa County by the title company and indexed to the name of the
Developer.
1st Amendment-Funding/Regulatory Agr. 4
IN WITNESS WHEREOF, Authority and Developer have caused this First
Amendment to be executed by their duly authorized officers and made effective on the day
and year first above written.
AUTHORITY DEVELOPER
HOUSING AUTHORITY OF COLUMBIA PARK MANOR,
THE COUNTY OF CONTRA COSTA, a California nonprofit
a public body, corporate and politic public benefit corporation
By:------------ By:------------
Richard J. Martinez, Executive Director Chairperson, Board of Directors
By:--------------------------
(Secretary)
APPROVED AS TO FORM:
Victor J. Westman, County Counsel
By:--------------------------
Deputy County Counsel
1st Amendment-Funding/Regulatory Agr. 5
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EXHIBIT" "B"
JOB NO. 30094-50
APRIL 7 , 1995
LEGAL. 1
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY SITUATE IN THE CITY OF PITTSBURG, COUNTY OF
CONTRA, STATE OF CALIFORNIA, DESCRIBED. AS FOLLOWS:
ALL OF PARCEL "A" AS SAID PARCEL IS SHOWN AND SO DESIGNATED ON
PARCEL MAP M. S . 676-95 FILED FOR RECORD IN THE OFFICE OF THE COUNTY
RECORDER IN BOOK OF PARCEL MAPS AT PAGE
C loo
FIRST AMENDMENT
TO
PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (the "First
Amendment") is made and entered into as of this _ day of , 1996,
by and between the HOUSING AUTHORITY OF THE COUNTY OF CONTRA COSTA, a public
body corporate and politic (the "Authority") and COLUMBIA PARK MANOR, a California
nonprofit public benefit corporation (the "Grantee").
RECITALS
WHEREAS, Authority and Grantee entered into that certain Purchase Agreement
effective April 15, 1994 (the "Purchase Agreement") for the sale and purchase,
respectively, of certain real property situated in the County of Contra Costa, State of
California (the "Property") and described as follows:
Approximately 2.99 acres of vacant land, the westerly portion of
assessor's parcel 073-140-015 at Chester Drive, Pittsburg,
California, shown as Parcel "B" on Exhibit "A", and described in Exhibit
_ "B" attached hereto and made a part hereof.
and
WHEREAS, the Purchase Agreement contains, among other provisions, certain
conditions with respect to a) the Pittsburg Preschool Coordinating Council, Inc. (the
"Preschool'), b) insurance and c) deed restrictions that shall affect the Property; and
WHEREAS, Authority and Grantee have agreed that the Property shall be
developed and operated as a senior housing facility for people of low or moderate incomes
(the "Project") pursuant to a grant (the "Capital Advance") provided by the Secretary
of Housing-and Urban Development (the "Secretary") under Section 202 of the Housing
Act of 1959, as amended; and
WHEREAS, the Secretary has objected to the Purchase Agreement with respect
to the Preschool, insurance and deed restrictions that shall affect the Property, and the
Secretary has advised Grantee that the Purchase Agreement should be amended as a
condition to the funding of the Capital Advance; and
WHEREAS, Grantee has advised Authority of the Secretary's requirement that
the Purchase Agreement be amended and Authority and Grantee have agreed that it is in
their respective best interests to comply with the Secretary's requirement to the fullest
extent possible so that the development of the Project is not jeopardized.
1st Amend./Purchase Agreement 1
C. /00
AGREEMENT
NOW THEREFORE, for and in consideration of the premises as stated herein and
for other valuable, considerations, the receipt and sufficiency of which are hereby
acknowledged, Authority and Grantee hereby agree as follows:
FIRST. Paragraph 7,USE OF PROPERTY PRIOR TO CONVEYANCE OF TITLE,
of the Purchase Agreement, which reads as follows:
GRANTEE acknowledges that there is a current lease on the property
covered by this Agreement to the PITTSBURG PRESCHOOL COORDINATING
COUNCIL, INC. (hereinafter "PRESCHOOL"), which expires on April 30,
2034, or upon conveyance of title to GRANTEE, whichever shall first
occur. GRANTEE understands and agrees that PRESCHOOL shall retain the
use of the property covered by this Agreement until such time as the
property is conveyed to GRANTEE. It shall be the sole responsibility of
GRANTEE, at GRANTEE's sole cost and expense to take any legal or other
action necessary to remove PRESCHOOL. from the property following
conveyance of title to GRANTEE or, if necessary, to clear the title to the
property.
is hereby amended in its entirety to read as follows:
GRANTEE acknowledges that there is a current lease on the property
covered by this Agreement to the PITTSBURG PRESCHOOL COORDINATING
COUNCIL, INC. (hereinafter "PRESCHOOL"), which expires on April 30,
2034, or upon conveyance of title to GRANTEE, whichever shall first
occur. GRANTEE understands and agrees that PRESCHOOL shall retain the
use of the property covered by this Agreement until such time as the
property is conveyed to GRANTEE. It shall be the sole responsibility of
GRANTEE, at GRANTEE's sole cost and expense to take any legal or other
action necessary to remove PRESCHOOL from the property following
conveyance of title to GRANTEE, and prior to the Section 202 capital
advance closing with the Secretary of Housing and Urban Development.
SECOND. Paragraph 9, INSURANCE, of the Purchase Agreement, which
reads as follows:
Prior to entering upon the property for any purpose, GRANTEE shall
provide AUTHORITY with a Certificate of Insurance certifying that it has
Comprehensive General Liability or Commercial General Liability
insurance covering bodily injury (including death), personal injury and
property damage with limits in an amount of not less than one million
dollars ($1,000,000) per occurrence and two million dollars
($2,000,000) aggregate, if applicable. Such insurance shall name the
Housing Authority of the County of Contra Costa, its officers, agents and
employees, individually and collectively, as additional insureds and shall
contain a special provision for thirty (30) days prior written notice of
any cancellation or reduction in coverage to be sent to the AUTHORITY.
Such insurance shall apply as primary insurance, and any other
insurance maintained by AUTHORITY shall be excess only and not
contributing with the insurance required under this section. Said
1st Amend./Purchase Agreement 2
�. Dov
insurance shall be maintained in full force and effect throughout the term
of this Agreement.
is hereby amended in its entirety to read as follows:
Prior to entering upon the property for any purpose, GRANTEE shall
provide AUTHORITY with a Certificate of Insurance certifying that it has
Comprehensive General Liability or Commercial General Liability
insurance covering bodily injury (including death), personal injury and
property damage with limits in an amount of not less than one million
dollars ($1,000,000) per occurrence and two million dollars
($2,000,000) aggregate, if applicable. Such insurance shall name the
Housing Authority of the County of Contra Costa, its officers, agents and
employees, individually and collectively, as additional insureds and shall
contain a special provision, for thirty (30) days prior written notice of
any cancellation or reduction in coverage to be sent to the AUTHORITY.
Such insurance shall apply as primary insurance, and any other
insurance maintained by AUTHORITY shall be excess only and not
contributing with the insurance required under this section. Said
insurance shall be maintained in full force and effect throughout the term
of this Agreement.
Notwithstanding the foregoing, the rights of Authority to insurance
proceeds pursuant to a claim shall be subordinate to the rights of the
Secretary of Housing and Urban Development (hereafter referred to as
"HUD"). In the event of an insurance claim made under any insurance
policy described in this.section, and so long as HUD is the holder of a deed
of trust against the property, or a Capital Advance Program Regulatory
Agreement or Capital Advance Program Use Agreement still affects the
property, then the Authority agrees that HUD shall have complete and sole
control over all insurance claim proceeds and the Authority agrees to
assign to HUD all of the Authority's rights to receive and/or use such
proceeds during such period. The assignment to HUD of all of the
Authority's rights under any of the insurance policies described in this
paragraph 9 shall no longer be applicable upon termination and/or
release of HUD's deed of trust, Capital Advance Program Regulatory
Agreement or Capital Advance Program Use Agreement.
THIRD. Paragraph 11, DEED OF RESTRICTIONS, of the Purchase
Agreement, which reads as follows:
This conveyance is made subject to the following conditions which shall be
included in the deed:
a. The property is conveyed on the express condition that it shall be
developed and forever used solely for the construction and operation of a
senior housing facility for elderly. individuals with low or low and
moderate income, as defined by Health and Safety Code section 50093, and
for no other purpose. Should the property ever not be used for such
purpose, then the Authority, its heirs, successors or assigns shall
reserve the right to re-enter and forfeit GRANTEE's title and the
property shall revert to AUTHORITY. The power of termination described
in this subparagraph shall be stayed and shall not be exercised for-so long
as the property is encumbered by both the Deed of Trust dated
1st Amend./Purchase Agreement 3
C�. /oo
199_, in favor of the United States of America acting by
and through the Secretary of Housing and Urban Development ("HUD"),
recorded as Instrument No. on , 199_,
in the official records of Contra Costa County ("HUD Deed of Trust"), and
the Regulatory Agreement dated 199__, executed
by and between GRANTEE and HUD, recorded as ..Instrument No.
on 199__, in said official
records ("HUD Regulatory Agreement") or during such period as title to
the property is held by HUD. The parties expressly agree that should a
breach of this restriction occur during such time as the property is
encumbered by the HUD Deed of Trust and the HUD Regulatory Agreement
or title to the property is held by HUD, any obligation the AUTHORITY
might otherwise have to exercise of the power of termination within five -
years after the breach, or such other time period as may be provided by
Civil Code section 885.050 or any successor legislation, is waived. This
deed is deemed by the parties to be the recorded waiver or extension
required by Civil Code section 885.050.
b. This property is conveyed on the express condition that GRANTEE
shall obtain a certificate of occupancy for a senior housing-facility within
five years of the date the deed to GRANTEE is recorded. Should GRANTEE
fail to obtain said certificate of occupancy within five years following
recordation of the deed, then the AUTHORITY, its heirs, successors or
assigns shall reserve the right to re-enter and forfeit GRANTEE's title
and the property shall revert to AUTHORITY. The power of termination
described in this subparagraph shall be stayed and shall not be exercised
for so long as the property is encumbered by both the HUD Deed of Trust
and the HUD Regulatory Agreement or during such period as title to the
property is held by HUD. The parties expressly agree that should a
breach of this restriction occur during such time as the property is
encumbered by the HUD Deed of Trust and the HUD Regulatory Agreement
or title to the property is held by HUD, any obligation the AUTHORITY
might otherwise have to exercise of the power of termination within five
years after the breach, or such other time period as may be provided by
Civil Code section 885.050 or any successor legislation, is waived. This
deed is deemed by the parties to be the recorded waiver or extension
required by Civil Code section 885.050.
C. Pursuant to Government Code section 50570, should the
ownership of the land no longer be composed of a majority of the nonprofit -
sponsor, then AUTHORITY, its heirs, successors or assigns shall reserve
the right to re-enter and forfeit GRANTEE'S title and the property shall
revert to AUTHORITY.
d. The deed to GRANTEE shall contain a recital that the AUTHORITY
has made the finding required by Government Code section 50570 and
such recital shall be conclusive in favor of purchasers or encumbrancers
for value. The deed shall also contain the findings and determinations
required by Health and Safety Code section 34315.7.
is hereby amended in its entirety to read as follows:
a. The property is conveyed on the express condition that it shall be
developed and forever used solely for the construction and operation of a
1st Amend./Purchase Agreement 4
senior housing facility for elderly persons and families with low or
moderate income, as defined by Health and Safety Code section 50093, and
for no other purpose. Should the property ever not be used for such
purpose, or, pursuant to Government Code section 50570, should the
ownership of the land no longer be comprised of a majority of the
nonprofit sponsor, then the AUTHORITY or its successors or assigns shall
reserve the right to re-enter and forfeit GRANTEE's title and the
property shall revert to AUTHORITY. The power of termination described
in this paragraph shall be stayed and shall not be exercised for so long as
the property is encumbered any of the following: (1) Capital Advance
Program Use Agreement between GRANTEE and HUD; (2) Deed of Trust
With Assignment of Rents in favor of HUD ; (3) Capital Advance Program
Regulatory Agreement between GRANTEE and HUD ; (4) any subsequent or
modified HUD Use Agreement, Deed of Trust or Regulatory Agreement; or
(5) title to the property is held by HUD.
b. The parties expressly agree that should a breach of this
restriction occur during such time as the property is encumbered by any
of the documents described above, or title to the property is held by HUD,
any obligation or right the Authority might have to exercise of the power
of termination within five years after the breach, or such other time
period as may be provided by Civil Code section 885.050 or any
successor legislation, is waived and such right shall not be exercised.
This deed is deemed by the parties to be the recorded waiver or extension
required by Civil Code section 885.050.
C. The deed executed and delivered by the AUTHORITY to GRANTEE
shall comply with Health & Safety code section 34315.7 and Government
Code section 50570. The deed shall also contain the covenants, conditions
and restrictions set forth in subparagraph a. and b. hereof. The recitals
contained in the deed shall be conclusive in favor of GRANTEE and
GRANTEE'S encumbrancers.
FOURTH. Paragraph 13, INDEMNITY AND HOLD HARMLESS, of the Purchase
Agreement, which reads as follows:
GRANTEE shall indemnify, defend, save, protect and hold harmless,
AUTHORITY, its officers and employees (hereinafter collectively referred
to as "AUTHORITY"), from and against any and all loss, damage, liability,
expense, claims or demands, of whatever character, to persons or
property, direct or consequential, directly or indirectly contributed or
caused by GRANTEE's operations or acts or omissions pursuant to this
Agreement, save and except claims or litigation arising through the sole
willful misconduct of AUTHORITY, its officers or employees.
GRANTEE further agrees to defend, indemnify, save, protect and
hold harmless, AUTHORITY from any and all claims, costs, actions or
proceedings to attack, set aside, void, abrogate or annul this agreement or
any act or approval of AUTHORITY related thereto.
GRANTEE shall also indemnify, protect, defend, save and hold
harmless AUTHORITY from and against any and Indemnified Costs arising
directly or indirectly out of or resulting from any Hazardous Substance
being present or released in, on or around any part of the Property, or in
1st Amend./Purchase Agreement 5
the soil, groundwater or soil vapor on or under the Property at any time,
either before or after this Purchase Agreement is executed, whether such
Indemnified Costs are discovered before or after the conveyance of the
Property to GRANTEE.
As used herein, "Hazardous Substance" means,any substance,
material or waste (including petroleum and petroleum products) which is
or becomes designated, classified or regulated as being "toxic" or
"hazardous" or a "pollutant," or which is or becomes similarly
designated, classified or regulated, under any federal, state or local law,
regulation or ordinance.
As used herein "Indemnified Costs" means all actual or threatened
liabilities, claims, actions, causes of action, judgments, orders, damages
(including foreseeable and unforeseeable consequential damages, costs,
expenses, fines, penalties and losses (including sums paid in settlement of
claims and all consultant, expert and legal fees and expenses of any
counsel retained by AUTHORITY) including those incurred in connection
with any investigation of site conditions or any clean-up, remedial,
removal or restoration work (whether of the subject property of any
other property), or any resulting damages, harm or injuries to the
person or property of any third parties or to any natural resources, and
also including any and all liability under the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA") 42
U.S.C. §9601 et seq., the Resource Conservation and Recovery Act
("RCRA") 42 U.S.C. §6901 et seq., and the California Hazardous Waste
Control Law ("HWCL") Health and Safety Code §25100 et seq., or any
successor legislation to the foregoing.
The obligations contained in this section shall include, but shall
not be limited to, the burden of defending all claims, suits, or
administrative proceedings with counsel approved by AUTHORITY, even if
such claims, suits or proceedings are groundless, false or fraudulent, and
the burden of conducting all negotiations of any description, and paying
and discharging, when the same become due, any and all judgments,
penalties, costs or other sums due against AUTHORITY. AUTHORITY, at its
sole expense, may employ additional counsel of its choice to associate with
counsel representing GRANTEE.
The obligations of the GRANTEE to indemnify, protect and defend
the AUTHORITY under this paragraph shall be limited solely to the assets
of the GRANTEE, its heirs, successors and assigns and shall not be a
personal liability of any--officer, director, member, trustee or employee
of GRANTEE nor shall it be binding upon any corporation affiliated with
GRANTEE. However the obligations of the GRANTEE to hold the AUTHORITY
harmless from all of the demands, liabilities, losses, damages, claims,
costs (including but not limited to Indemnified Costs), expenses,
litigation, actions and/or proceedings described by this section shall
extend not only to GRANTEE but also to its officers, directors, members,
trustees, employees and affiliated corporations and GRANTEE makes the
promises to hold harmless set forth in this section on. behalf of itself and
on behalf of the aforementioned officers, directors, members, trustees,
employees and affiliated corporations.
1st Amend./Purchase Agreement 6
The obligations contained in this section shall survive the
assignment, expiration or termination of this Agreement.
is hereby amended in its entirety to read as follows:
GRANTEE shall indemnify, defend, save, protect and hold harmless,
AUTHORITY, its officers and employees (hereinafter collectively referred
to as "AUTHORITY"), from and against any and all loss, damage, liability,
expense, claims or demands, of whatever character, to persons or
property, direct or consequential, directly or indirectly contributed or
caused by GRANTEE's operations or acts or omissions pursuant to this
Agreement, save and except claims or litigation arising through the sole
willful misconduct of AUTHORITY, its officers or employees.
GRANTEE further agrees to defend, indemnify, save, protect and
hold harmless, AUTHORITY from any and all claims, costs, actions or
proceedings to attack, set aside, void, abrogate or annul this agreement or
any act or approval of AUTHORITY related thereto.
GRANTEE shall also indemnify, protect, defend, save and hold
harmless AUTHORITY from and against any and Indemnified Costs arising
directly or indirectly out of or resulting from any Hazardous Substance
being present or released in, on or around any part of the Property, or in
the soil, groundwater or soil vapor on or under the Property at any time,
either before or after this Purchase Agreement is executed, whether such
Indemnified Costs are discovered before or after the conveyance of the
Property to GRANTEE.
As used herein, "Hazardous Substance" means any substance,
material or waste (including petroleum and petroleum products) which is
or becomes designated, classified or regulated as being "toxic" or
"hazardous" or a "pollutant," or which is or becomes similarly
designated, classified or regulated, under any federal, state or local law,
regulation or ordinance.
As used herein "Indemnified Costs" means all actual or threatened
liabilities, claims, actions, causes of action, judgments, orders, damages
(including foreseeable and unforeseeable consequential damages, costs,
expenses, fines, penalties and losses (including sums paid in settlement of
claims and all consultant, expert and legal fees and expenses of any
counsel retained by AUTHORITY) including those incurred in connection
with any investigation of site conditions or any clean-up, remedial,
removal or restoration work (whether of the subject property of any
other property), or any resulting damages, harm or injuries to the
person or property of any third parties or to any natural resources, and
also including any and all liability under the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA") 42
U.S.C. §9601 et seq., the Resource Conservation and Recovery Act
("RCRA") 42 U.S.C. §6901 et seq., and the California Hazardous Waste
Control Law ("HWCL") Health and Safety Code §25100 et seq., or any
successor legislation to the foregoing.
1st Amend./Purchase Agreement 7
The obligations contained in this section shall include, but shall
not be limited to, the burden of defending all claims, suits, or
administrative proceedings with counsel approved by AUTHORITY, even if
such claims, suits or proceedings are groundless, false or fraudulent, and
the burden of conducting all negotiations of any description, and paying
and discharging, when the same become due, any and all judgments,
penalties, costs or other sums due against AUTHORITY. AUTHORITY, at its
sole expense, may employ additional counsel of its choice to associate with
counsel representing GRANTEE.
The obligations of the GRANTEE to indemnify, protect, defend and
hold harmless the AUTHORITY under this paragraph shall be limited
solely to the assets of the GRANTEE, its heirs, successors and assigns and
shall not be a personal liability of any officer, director, member, trustee
or employee of GRANTEE or of any corporation affiliated with Grantee.
Provided, however, that GRANTEE warrants and represents to
AUTHORITY, on behalf of itself, its heirs, successors, assigns, officers,
directors, members, trustees, employees and affiliate corporations, with
the understanding that such representation and warranty is material and
is being relied upon by AUTHORITY, that GRANTEE's officers, directors,
members, trustees, employees and affiliate corporations are not and shall
not be considered parties to nor beneficiaries of this Agreement nor shall
such persons or entities ever claim, have or assert any right or action
against AUTHORITY for any loss or damage or other matter arising or
resulting from this Agreement or any act or omission of the AUTHORITY
or the GRANTEE hereunder.
The obligations contained in this section shall survive the
assignment, expiration or termination of this Agreement.
FI FTH. Paragraph 14, STORM DRAIN EASEMENT, of the Purchase
Agreement, which reads as follows:
GRANTEE shall execute and deposit into escrow an easement to AUTHORITY,
in a form and at a location to be determined and approved by AUTHORITY in
its sole discretion, for storm water drainage from Parcel "A."
is hereby amended in its entirety to read as follows:
GRANTEE shall execute and deposit into escrow an easement to AUTHORITY
for storm water drainage from Parcel B in a form and at a location to be
determined and approved by GRANTEE and AUTHORITY. The form and
location of such easement shall not be inconsistent with GRANTEE'S
development plan as approved by the Secretary of Housing and Urban
Development and the City of Pittsburg.
SIXTH. Subparagraph a.. Access to Parcel A, of Paragraph 15,ACCESS
EASEMENTS, of Purchase Agreement,which reads as follows:
a. Access to Parcel A: GRANTEE shall execute and deposit into
escrow a nonexclusive appurtenant easement to AUTHORITY, in a form and at
a location to be determined and approved by AUTHORITY in its sole
discretion,for access to Parcel"A."
1st Amend./Purchase Agreement 8
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is hereby amended in its entirety to read as follows:
a. Access to Parcel B: GRANTEE shall execute and deposit into
escrow a nonexclusive appurtenant easement to AUTHORITY, in a form and at
a location to be determined and approved by AUTHORITY in its sole discretion,
for access to Parcel"B."
SEVENTH. Subparagraph b. Access to Parcel B, of Paragraph 15, ACCESS
EASEMENTS, of Purchase Agreement,which reads as follows:
b. Access to Parcel B: AUTHORITY shall execute and deposit into
escrow a nonexclusive appurtenant easement to GRANTEE for access for
Parcel "B" in a form and at a location to be determined and approved by
AUTHORITY in its sole discretion. The easement shall not be conveyed to
GRANTEE unless and until the GRANTEE also obtains a license from
PRESCHOOL permitting the GRANTEE to use the property for access. The
grant of easement shall provide that the easement will terminate in the event
Parcel"B" reverts to AUTHORITY.
is hereby amended in its entirety to read as follows:
b. Access to Parcel A: AUTHORITY shall execute and deposit into
escrow a nonexclusive appurtenant easement to GRANTEE for access to
Parcel "A" in a form and at a location to be determined and approved by
AUTHORITY in its sole discretion. The grant of the easement shall provide that
the easement will terminate in the event Parcel"A" reverts to AUTHORITY. "
EIGHTH. The property description in Paragraph 1 Parties and Premises, , which reads
as follows:
"Approximately 2.99 acres of vacant land, the westerly portion of assessors
parcel 073-140-015 at Chester Drive, Pittsburg, California, shown as Parcel "B"
on Exhibit'A" and described in Exhibit "B" attached hereto and made a part
hereof."
is amended in its entirety to read as follows:
Approximately 2.99 acres of vacant land, the westerly portion of assessors
parcel 073-140-015 at Chester Drive, Pittsburg, California, shown as Parcel "A"
on Exhibit 'A" and described in Exhibit "B" attached hereto and made a part
hereof.
NINTH. Exhibits "A" and "B" of the Purchase Agreement are rescinded and replaced
with the Exhibits"A" and"B" attached hereto and made a part of this amendment.
Except as.amended by this First Amendment, the terms of the Purchase Agreement
shall and do remain in full force and effect.
1st Amend./Purchase Agreement 9
IN WITNESS WHEREOF, Authority and Grantee have caused this First
Amendment to be executed by their duly authorized officers and made effective on the day
and year first. above written.
AUTHORITY GRANTEE
HOUSING AUTHORITY OF COLUMBIA PARK MANOR,
THE COUNTY OF CONTRA COSTA, a California nonprofit
a public body,, corporate and politic public benefit corporation
By:-------------------------- By:--------------------------
Richard J. Martinez, Executive Director Chairperson, Board of Directors
By:--------------------------
(Secretary)
RECOMMENDED FOR APPROVAL
By:--------------------------
County Lease Manager
APPROVED AS TO FORM:
Victor J. Westman, County Counsel
By:--------------------------
Deputy County Counsel
1st Amend./Purchase Agreement 10
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EXHIBIT "B"
JOB NO. 30094-50
APRIL 7 , 1995
LEGAL. 1
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY SITUATE IN THE CITY OF PITTSBURG, COUNTY OF
CONTRA, STATE OF CALIFORNIA, DESCRIBED. AS FOLLOWS :
ALL OF PARCEL "A" AS SAID PARCEL IS SHOWN AND SO DESIGNATED ON
PARCEL MAP M. S . 676-95 FILED FOR RECORD IN THE OFFICE OF THE COUNTY
RECORDER IN BOOK OF PARCEL MAPS AT PAGE