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MINUTES - 03112003 - SD6
TO: REDEVELOPMENT AGENCY/BOARD OF SUPERVISORS �. . Contra FROM: John Sweeten,Executive Director Costa T County DATE: March 11, 2403 SUBJECT: Disposition, Development and Loan Agreement — Bay View Housing Development, Bay Point Redevelopment Project Area SPECIFIC REQUEST(S)OR RECOMMENDATIONS(S)&BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. HOLD a Joint Public Hearing of the Board of Supervisors and the Governing Board of the Redevelopment Agency on the sale of the Redevelopment Agency owned property as required by Section 33433 of the Health and Safety Code, 2. ADOPT Resolution of the Board of Supervisors approving a Disposition,Development,and Loan Agreement by and between the Redevelopment Agency and Resources for Community Development and the O'Brien Group for the Bay View Housing Development,52.multiple-family residential units and fig single-family residential units, in the Bay Point Redevelopment project Area; 3. APPROVE and AUTHORIZE the Redevelopment Director to execute a Disposition,Development and Loan Agreement with Resources for Community Development and the O'Brien Group for the Bay View Housing; Development; 4. ADOPT Resolution of the Redevelopment Agency authorizing the execution of a Disposition,Development, and Loan Agreement with Resources for Community Development and the O'Brien Group for the Bay View Housing Development; and 5. FIND the Mitigated Negative Declaration is adequate and has been prepared consistent with State and County CEQA guidelines and ADOPT the Mitigated Negative Declaration. CONTINUED D ON ATTACHMENT: X YES SIGNATURE . . RECOMMENgATION OF EXECTUTIVE QIRECTOR/COUNTY AD;INI TOR RECOMMENDATION OF AGENCY/BOARD COMMITTEE APPROVE OTHER SIGNATURES ACTION OF BOARD ON Mauch 11, 2003 APPROVED AS RE MENDED OTH R X ***See attached addendum for Board's action*** VOTE OF SUPERVISORS/COMMISSIONERS I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION UNANIMOUS TAKEN AND ENTERED ON THE MINUTES (A*S—E NTS_) OF THE BOARD OF SUPERVISORS ON THE AYES: NOES: ABSENT: ABSTAIN: DATE SHOWN DISTRICT III SEAT VACANT Contact. xtaureen toms, community Development- 335- ATTESTED 1250 March 11, =3 JOHN SWEETEN, AGENCY SECRETARY, cc: Redevelopment Agency CLERK OF THE BOARD OF SUPERVISORS County Administrator AND COUNTY ADMININISTRATOR County Counsel rf ` BY, f DEPUTY FISCAL IMPACT No General Funds would be used. The terms of the proposed disposition and financial assistance of the Agency are fully described in the attached 33433 report. BACKGROUND/REASONS FOR RECOMMENDATIONS A major goal of the Bay Point Redevelopment Plan is to improve and expand the supply of decent and safe affordable housing in the Project Area. The Bay View Housing Project will provide fifty-two(52)affordable multiple-family residential units and sixty-nine(69)single-family residential units. The Bay Point Project Area Committee(PAC)and the Bay Point Municipal Advisory Council(MAC)are strong supporters of the project. The PAC approved the selection of the developer and the budgeting of funds provided in the Development Loan to finance a portion of the multiple-family construction component of the project. The Board action approves execution of the DDLA by an affiliate ofResources for Community Development or an affiliate of O'Brien(in place of RCD or O'Brien),provided the applicable requirements of Article 7 of the DDLA with respect to transfers are satisfied by such affiliate. The Disposition, Development and Loan Agreement (DDLA)provides for the conveyance of certain real property,and the construction of the fifty—two(52)multiple- family residential units for very low to moderated income families and sixty-nine !single-family market rate residential units. In January 2001,the Redevelopment Agency purchased the approximately eight acres of property previously used as a junkyard. The site was remediated to a reuse standard for residences.Additional properties to complete the land assemblage have been acquired in the last few months. The Agency intends to convey approximately 6.9 acres to the O'Brien Group and approximately 2 acres to Resources for Community Development. Section 33433 of the Health and Safety Code requires Redevelopment Agencies to hold a public hearing prior to approving the sale of property acquired with tax increment funds. A summary report of the terms of the proposed disposition has been prepared,and is attached hereto. A community planning process was conducted to define the proposed development. A competitive Request for Developer Proposals for the development of the site was used. The PAC was involved in reviewing the proposals and interviewing development teams for the project. The team of Resources for Community Development, a nonprofit housing development corporation,and The O'Brien Group,a for-profit housing developer,were selected by the Bay Point PAC for the development of the Agency-owned site. On July 9,2002,the Board of Supervisors designated the development team and authorized the Redevelopment Director to negotiate a Disposition, Development and Loan Agreement for the project. The Redevelopment funds will be structured as a residual receipts loan,secured by a promissory note and deed of trust against the land and planned improvements. The DDLA specified the terms and conditions for the use of the Redevelopment funds. Implementation of the DDLA will provide fifty-two (52) new residential units, thereby contributing to the community's supply of housing affordable to very low to moderate-income households. In addition,development of the multiple-family residential project and the adjacent sixty-nine(69)unit single-family residential project will help create an environment that is more attractive and economically viable to help stimulate further development in the Project Area. The project allows the Redevelopment Agency to fulfill it's legal obligation for affordable housing production. SUMMARY REPORT PURSUANT TO SECTION 33433 OF THE CALIFORNIA COMMUNITY REDEVELOPMENT LAW ON THE DISPOSITION,DEVELOPMENT AND LOAN AGREEMENT BY AND BET`%1EEN THE CONTRA COSTA COUNTY REDEVELOPMENT AGENCY AND RESOURCES FOR COMMUNITY DEVELOPMENT AND THE O'BRIEN GROUP I. INTRODUCTION Bay Area Economics, as a consultant to the Contra Costa County Redevelopment Agency, has prepared this Summary Report. The California Health and Safety Code, Section 33433,requires that if a redevelopment agency wishes to sell or lease property to which it holds title and if that property was acquired in whole or in part with property tax increment funds,the agency must first secure approval of the proposed sale from its local legislative body after a public hearing. A copy of the proposed Disposition, Development and Loan Agreement and a summary report that describes and contains specific financing elements of the proposed transaction shall be available for public inspection prior to the public hearing. As contained in the Code, the following information shall be included in the summary report. ➢ The cost of the DDLA to the redevelopment agency, including land acquisition costs, clearance costs,relocation costs,and the costs of any improvements to be provided by the agency; ➢ The estimated value of the interest to be conveyed,determined at the highest and best use permitted under the redevelopment plan; ➢ The estimated value of the interest to be conveyed in accordance with the uses, covenants, and development costs required under the proposed DDLA, i.e., the reuse value of the site; ➢ An explanation of why the sale of the property will assist in the elimination of blight;and if the sale price is less than the fair market value of the interest to be conveyed, determined at the highest and best use consistent with the redevelopment plan, then the agency shall provide as part of the summary an explanation of the reasons for the difference. This report outlines the salient parts of the Disposition, Development and Loan Agreement ("DDLA") for the Bay View Community Housing development that is to be considered by the Contra Costa County Redevelopment Agency and the County of Contra Costa. The proposed DDLA is by and among the Contra Costa County Redevelopment Agency (the "Agency"), Resources for Community Development, a California nonprofit public benefit corporation ("RCD"),and the O'Brien Group,a California corporation("O'Brien"),referred to collectively as "Developers". If this DDLA is approved by the Agency and County, it will authorize development of an approximately 9.22 residential community with a mixture of sixty-nine (69) Bay Area Economics Page 1 32=71166724,5 single-family detached and fifty-two (52) multifamily residential units along with a small ancillary commercial component (childcare center) (the "Development"). The purpose of this analysis is to summarize the cost of the DDLA to the Agency. This report is based upon information in the proposed DDLA and is organized into the following sections: Section 1I Summary of the Proposed Agreement - This section includes a description of the proposed development and the major responsibilities of the Agency and the Developers. Section III.Cast of the Agreement- This section outlines the cost of the DDLA. It presents the Agency costs associated with the land conveyance to the Developers. Section IV. Consideration Received and Reasons 'Therefore - This section discusses the consideration provided by RCD and O'Brien and the reasons that the Agency is entering into this DDLA. Section V. Estimated Value of the Interest to be Co4ygyed - This section summarizes the value of the site to be sold to the Developers. This section summarizes the reuse valuation of the interests to be conveyed to the Developers and the consideration being provided by the Developers. The section indicates that the consideration being provided is not less than the reuse value, and also that it is not less than the estimated value of the Agency-owned parcels at the highest and best use consistent with the redevelopment plan. Section V1. Elimination of B11yht - This section includes an explanation of why the Development will assist in the elimination of blight. Section VII Conformance with Five-Year Implementation Plan-This section describes how the DDLA is in conformance with the Agency's Five-Year Implementation Pian. II. SUMMARY OF THE PROPOSED AGREEMENT A. Description of the Project Project Description The proposed Development described in the DDLA is a mixed-income residential project on Willow Pass Road in the North Broadway neighborhood of the unincorporated community of Bay Point,California. The Development includes the following components: Single Family Component, including sixty-nine(69)single-family detached units. These for-sale units will be developed and sold at market-rates and will include a variety of two- and three- bedroom floor plans. Multifamily Component, including fifty-two multi-family units. The multi-family units will be rent-restricted with units affordable to households earning between 15% and 60% of the Area Median Income(AMI), The average affordability level will be 45%. Bay Area Economics Page 2 320\071166724.5 Commercial Component, the multifamily building will include a small childcare center(less than 5,000 square feet), intended to be occupied by Rindango, an affordable childcare provider. Public Improvements, The Development includes a public plaza on Willow Pass Road as well street improvements(water,drainage,curb,gutter,sidewalks,landscaping,streetlights, and street trees) along Willow Pass Road, Fairview Street, and interior public and private streets to be constructed as part of the Development. Developers The developer of the single-family portion of the site will be the O'Brien Croup, a California Corporation("O'Brien"). The developer of the multi-family portion of the site will be Resources for Community Development, a California public benefit nonprofit corporation("RCD"). 'These parties are referred to collectively as the "Developers" and will be responsiblefor coordinating initial design review and planning with the Agency. The DDLA provides for possible assignment of the Development to afflilates of the Developers, including limited liability companies and/or limited partnerships. Site The 9.22 acre property to be conveyed to the Developers pursuant to the DDLA(the "Property") is comprised of 10 distinct parcels which have been acquired (or are in the process of being acquired) from. several property owners. The majority of the site (six parcels) was purchased from a single-property owner, and is referred to in the DDLA and in this report as the "Siino Property"or the"Siino Parcels". An additional four parcels are in the process of being acquired by the Agency and these are referred to as the"Additional Parcels". All of the Additional.Parcels are within the portion of the Property planned for construction of the multi-family units. B. Agency Responsibilities ➢ Using tax-increment monies, the Agency has or will purchase all of the Property comprising the Development site. ➢ The Agency will relocate one commercial tenant on the Property (a restaurant) in accordance with legal requirements,and demolish the restaurant improvements. ➢ The Agency will review and approve Developers' design and construction criteria and Development financing plans. > The Agency will convey the entire development site to the Developers. ➢ The Agency will provide a $570,649 grant to RCD to construct public improvements required in connection with the multi-family component of the Development. Bay Area Economics Page 3 3201071166724.5 ➢ The Agency will provide a $2,622,262 predevelopment and construction loan to RCD to assist in financing of the multi-family component of the Development. C. Developer Responsibilities As a condition precedent to the Agency's conveyance of the Property to the Developers, the Developer's responsibilities under the proposed DDLA include the following: ➢ Complete the land use approval and design review process for the Development. ➢ Secure all necessary permits and approvals for the Development from the County and the Agency. Submit binding commitments to finance the Development, and close all construction financing. ➢ Presuming that the above conditions are met, and subject to the specific terms and conditions stated in the DDLA, the Developers will accept conveyance of the Property and diligently construct the Development, including all required public infrastructure required by Development land use approvals. III. COST OF THE AGREEMENT This section presents the total potential cast of the DDLA to the Agency. Pursuant to California Health and Safety Code Section 33433 (a)(2)(13)(i), the cost of this agreement to the Agency includes all land acquisition costs,clearance costs,relocation costs,the cost of any improvements to be provided by the Agency, plus the interest on any loans or bonds to finance the agreements. The net cost can be either an actual cost, when expenditures exceed receipts, or a net gain, when revenues created by implementation of the Agreement exceed expenditures. A. Estimated Cost For this DDLA,the costs are as follows: Land Acquisition Cost $1,830,153 Agency Infrastructure Assistance $570,649 Agency Loan to RCD $2,622,462 Clearance and Relocation Costs $55,000 Bond/Loan Interest $53,100 Total $5,131,364 B. Estimated Revenues The Developers will pay the Agency a total of$1,830,153 towards the purchase of the 9.22 acre project site. Bay Area Economics Page 4 3201071156724.5 The Agency will collect tax increment generated by the single family component of the Development, projected to be approximately $211,500 annually following completion of construction of the single family component of the Development in 2004. This additional tax increment will accrue to the Agency over the course of a 33 year period until 2037. It is anticipated that the multi-family portion of the Development will be exempt from taxation. C. Net Cost The Agency's estimated costs are $5,131,364. Thus, the Agency will have net revenues of $3,678,289($8,809,653 less$5,131,364). Developer Consideration $1,830,153 Total Estimated Tax Increment Generated(Including Dousing $6,979,500 set-aside)' (Less)Agency Costs a&111.364 Net Revenue to Agency $3,678,259 IV. CONSIDERATION RECEIVED AND REASONS THEREFORE Under the terms of the DDLA, the purchase price of the Property will be $1,830,153, of which $714,640 will be allocated to the multi-family site and$1,115,513 will be allocated to the single- family site. A portion of the Property (the Siino Parcels) is currently being reappraised since several years have passed since the Agency appraised these parcels in connection with their acquisition by the Agency. The DDLA provides that the purchase price for the Property to be paid by the Developers will be increased, if necessary, so that the Siino Parcels are not conveyed by the Agency for less than their current appraised fair market value. V. VALUE OF THE INTEREST TO BE CONVEYED Estimated Value at Highest and.Best U,se The purchase price stated above is based on the Agency's costs to acquire the Property and the Agency's estimate of the fair market value of the Property based on the most recent appraisals of the Property. All appraisals of the Property, except for the Siino Parcels, were performed within the last twelve months and were utilized in the Agency's acquisitions of the parcels. The appraisals all assumed a highest and best use of residential development. The appraisal of the Siino Parcels was obtained in :tune, 2000 and is in the process of being updated.. If the updated appraisal shows a fair market value of the Siino Parcels which is greater than the Agency's costs to acquire the Siino Parcels ($1,414,153), then the purchase price for the Property to be paid by ' Expressed in present value terms. Bay Area Economics Page 5 3201071166724.5 . ........ .._.. ... . ___ ........ _ ..... ........... _.__. ...... ......... ............. ... ......... ._....... . ................................................................................... ........................ the Developers will be increased to include any value in excess of$1,414,153 attributable to the Siino Parcels. If this upward adjustment exceeds the initial purchase price by more than ten(10) percent, the Developers may within fifteen (15) days of their receipt of the Agency Purchase Price Determination letter elect to terminate the Agreement. In sum, the total appraised value of the Property is $1,643,400. The purchase price for the Property pursuant to the DDLA is $1,830,153, subject to increase following receipt of the updated appraisal of the Siino Parcels. This estimate of fair market value for the total site is consistent with background economic feasibility analysis conducted by Bay Area Economics as part of the North Broadway neighborhood planning process, and reflects the highest and best use for the site under the redevelopment plan for the Bay Point area. The total appraised value of approximately $1.6 million for the entire Property is less than the proposed purchase price specified in the DDLA. Based on the above estimates, BAE concludes that the minimum consideration of$1,830,153 provided by the Developers is not less than the fair market value of the parcels to be conveyed by the Agency at their highest and best use under the Redevelopment Plan. Reuse Value Reuse value is defined in California Redevelopment Law as the value of land taking into account legal restrictions on use, intensity, and development standards. The reuse value of the property, thus, is a direct function of the development economics specific to the proposed project. The Project will include both market-rate for-sale units, and rental units to be restricted to households earning less than 60 percent of the AMI. As a result of the legal use restrictions placed on the multi-family portion of the site, the reuse value of the project will be will be somewhat less than the fair market value of the site. Per the terms of the DDLA. O'Brien will pay the Agency, $1,115,513 for the single-family site which is consistent with the land valuation analysis conducted by BAE or the Agency as part of the DDLA negotiation process. RCD will pay the Agency $714,640 for the multi-family site, which is the fair market value as currently appraised and does not incorporate any discounts to the property's reuse value based on income restrictions. Based on these considerations, BAE concludes that the total purchase price of$1,830,153 to be provided by the Developers is not less than the reuse value of the Property to be conveyed at the use and with the covenants and conditions and development costs authorized by the DDLA and for the interest to be acquired by the Developers. VI. ELIMINATION OF BLIGHT The proposed Development, when constructed, will assist in the elimination of blight in the Bay Point Redevelopment Area for the following reasons. ➢ The proposed development will achieve the remediation and redevelopment of a former junkyard which presented a significant source of blight in the North Broadway neighborhood. 2 Appraisals conducted by the accounting firms of Roland,Burchard&Associates and Edwards,Plaire and Company,and the Real Property Division of Contra Costa County between June,2000 and February,2003 Bay Area Economics Page 6 320107\166724.5 ➢ The subject property divides the North Broadway neighborhood into two sub- neighborhoods: the Solano/Poinsetta area and the Highway Crivello area. Small blocks in a grid pattern characterize the Highway/Crivello area, while the Solano/Poinsetta area is characterized by long linear blocks with little interconnection. This results in less neighborhood interaction and presents significant safety and access issues. The proposed Development will address these physical design problems through a well designed street gird which will promote increased interconnection in both neighborhoods. ➢ The Development will bring new infrastructure, new economic investment and new high quality residential development to an area which currently experiences significant manifestations of blight in the forms of substandard housing, inadequate infrastructure, inappropriate land uses,high criminal activity,including prostitution and drug use, lower incomes and high unemployment ➢ The assembly of the parcels that will comprise the Development site, some of which are of an irregular shape and inadequate size and in multiple ownership such that development has been hindered for many years, will achieve a result that could not be achieved by the private sector acting alone. VII. CONFORMANCE WITH FIVE-YEAR IMPLEMENTATION PLAN The Property is located in a Redevelopment Project Area and the planned Development is consistent with the Agency's Five-Year(2000-2004)Implementation Plan which was adopted on November 16, 1999. This project is specifically mentioned as project 8 in the Implementation Plan. The Development directly conforms to the objectives defined in the North Broadway Neighborhood Plan developed through an extensive community planning process in 2402. The Development meets objectives to provide more housing ownership opportunities and to provide for an ample supply of affordable family housing. In addition,the Development will incorporate neo-traditional design principles and will be developed in such as a way as to support the revitalization of the entire North Broadway neighborhood. Bay Area Economics Page 7 3201071166724.5 THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on March 11, 2003, by the following vote: AYES: siPMVISMS GIOIA, UIUMtP,., GLMM and DeSAC7'€ ER NOES: Nps ABSENT: NW ABSTAIN: NM *** DIST'RICT III VACANT*** Resolution No.: 2003/166 SUBJECT: (1)Authorizing execution of a Disposition, Development and Lean Agreement with Resources for Community Development, a California non-profit public benefit corporation("RCD"), and The O'Brien Croup, a California corporation ("O'Brien"),(2)making findings and approvals pursuant to the California Environmental Quality Act and the California Community Redevelopment Law, and(3)consenting to the expenditure of Agency Funds for the construction of certain infrastructure improvements. The Board of Supervisors of Contra Costa County RESOLVES THAT: The Board of Supervisors (the"Board")of the County of Contra Costa(the "County") adopted the Bay Point Redevelopment Plan by Ordinance No. 87-102 on December 29, 1987, and subsequently amended by Ordinance No. 94-64 on December 6, 1994 and Ordinance No. 99-05 on February 23, 1999(the "Redevelopment Plan"),which Redevelopment Plan sets forth a plan for redevelopment of the Bay Point Redevelopment Project Area(the "Project Area"). The Contra Costa County Redevelopment Agency(the "Agency")is responsible for administering the Redevelopment Plan to cause redevelopment of the Project Area, including assembly, site preparation and redisposition of property both within and outside the Project Area for private redevelopment consistent with the Redevelopment Plan. Pursuant to Section 33445 of the Community Redevelopment Law (Part l of Division 24 of the Health and Safety Code of the State of California(the "Law")), the Agency is authorized, with the consent of the Board, to pay part or all of the cost of the installation and construction of any building, facility,structure, or other improvement which is publicly ownedand is of benefit to the Project Area. The Agency owns or is in the process of acquiring an approximately 9.22-acre site(the "Property") located within the Project Area, bounded by Pullman Avenue, Bella Monte Avenue, Fairview Street and Willow Pass Road. 32011371166768.2 313103 USMMION Nm. 2003/166 The Agency desires to cause redevelopment of the Property through the construction by RCD of fifty-two (52)multifamily rental apartment units affordable to low and moderate income persons (the "Apartment Improvements") and the construction by O'Brien of sixty-nine(69) single family homes for owner occupancy by(the "Single Family Improvements")(collectively, the "Development"). The construction of certain infrastructure improvements(the "Infrastructure Improvements") including the construction of sewer and drainage facilities and traffic improvements on the streets bordering the Development, is necessary to the successful redevelopment of the Property and will therefore be of benefit to the entire community surrounding the Development, and the Project Area as a whole. The Agency desires to enter into a disposition,development and loan agreement(the "DDLA")with RCD and O'Brien (collectively the "Developers"), substantially in the form on file with the Clerk of the Board and the Agency Secretary,pursuant to which the Agency would sell the Property to the Developers and the Developers would develop the Development on the Property and undertake the design and construction of the Infrastructure Improvements, with a portion of the costs of such Infrastructure Improvements that serve the Apartment Improvements to be reimbursed by the Agency. The commitment and expenditure of Five Hundred Seventy Thousand Six Hundred Forty Nine Dollar($570,649)in Agency fiends for the Infrastructure Improvements serving the Apartment Improvements (the "Infrastructure Improvements Financing Commitment") is consistent with the Agency's five-year Implementation Plan(the "Implementation Plan"). No other reasonable means of financing the Five Hundred Seventy Thousand Six Hundred Forty Nine Dollar($570,649)portion of the cost of the Infrastructure Improvements to be paid by the Agency pursuant to the Infrastructure Improvements Financing Commitment are available to the Agency,the County, or the community of Bay Point. Redevelopment of the Property pursuant to the DDLA will serve the purposes of Section 33334.2 of the Law, as well as the goals and objectives of the Redevelopment Plan,by assisting in the elimination of blight in the Project Area and by improving and increasing the community's supply of affordable housing. The Agency intends to apply the Apartment Improvements to be developed in the Development toward satisfaction of its Project Area affordable housing production obligation under Section 33413(b)(2)of the Law. The Agency also intends to utilize the Apartment Improvements to be developed in Development to obtain replacement housing credits pursuant to Health and Safety Code Section 33413(a). The Agency has placed on file a copy of the DDLA and the summary called for in Section 33433 of the Law(the "Section 33433 Summary"), and has made the DDLA and the 320107\166768.2 313/03 Section 33433 Summary available for public inspection and copying pursuant to Section 33433 of the Law. The Section 33433 Summary is incorporated in this Resolution by this reference. By actions of October 2, 2000 and December 10, 2002,the Planning Commission of the County of Contra Costa(the "Planning Commission")found and determined, in compliance with Government Code Sections 65402(a)and.(c),that the location,purpose and extent of the proposed disposition of the Property to the Developer for the development of the Development pursuant to the DDLA would conform to the County's General Plan. The Board and the Agency have conducted a duly noticed public hearing on the DDLA pursuant to Section 33433 of the Law for the purpose of receiving the input and comments of the public on the DDLA. The County, serving as "lead agency" under the California Environmental Quality Act and the applicable state and local implementing guidelines ("CEQA"),has prepared a negative declaration(including an initial study)that has evaluated(1)the development of the Development on the Property, including construction of the Infrastructure Improvements;and(2) the disposition of the Property by the Agency,provision of financial assistance for the Development by the Agency, and development of the Infrastructure Improvements and the Development, pursuant to the proposed DDLA; (the "Negative Declaration"). The Agency has served as, and has complied with the requirements of,,a"responsible agency" under the CEQA in connection with the processing and consideration of the Negative Declaration. The Negative Declaration, a copy of which is on file with the Clerk of the Board and Agency Secretary,has served as the CEQA document for consideration and approval by the Agency and the Board of the DDLA,the disposition by the Agency of the Property,the financial assistance to be provided by the Agency pursuant to the DDLA,the ultimate development of the Development on the Property, and the constriction of the Infrastructure Improvements by the Developers, and the related findings and determinations set forth in this Resolution and the companion resolution approved concurrently by the Agency(the "DDLA Actions"). By staff report accompanying this Resolution and incorporated into this Resolution by this reference (the "Staff Report"), the Agency has been provided with additional information upon which the findings and actions set forth in this Resolution are based. NOW,THEREFORE, BE IT RESOLVED,that the Board finds that the above recitals are accurate. BE IT FURTHER RESOLVED,that the Board certifies that, in considering approval of the DDLA Actions, the Board has considered the Negative Declaration and all comments received during the public review process on the Negative Declaration in accordance with CEQA. 320\07\16676&2 3/3/03 BE IT FURTHER RESOLVED,that the Board finds that the Negative Declaration reflects the independent judgment and analysis of the Board BE IT FURTHER RESOLVED that the Board finds, on the basis of the whole record before it(including the Negative Declaration and any comments received),that there is no substantial evidence that the DDLA Actions will have a significant effect on the environment. BE IT FURTHER RESOLVED, that, based on the foregoing, the Board states its intention that the Negative Declaration serve as the environmental documentation for the Board's consideration of the DDLA Actions in compliance with CEQA. BE IT FURTHER RESOLVED, that the Clerk of the Board is hereby authorized and directed to file a Notice of Determination in accordance with 14 Cal. Code of Regulations, Section 15075. BE IT FURTHER RESOLVED, that, based on the information and analysis set forth in the Negative Declaration,there is no evidence that the DDLA Actions, including development of the Development on the Property and construction of the Infrastructure Improvements,would have any potential for adverse impact on wildlife resources, and, therefore, a Certificate of Fee Exemption will be submitted with the Notice of Determination filed in connection with the DDLA Actions, as required by Public Resources Code Section 21089. BE IT FURTHER RESOLVED, that,pursuant to Section 33433 of the;Law,the Board hereby finds that the consideration to be given by the Developers under the DDLA is not less than the fair reuse value of the Property at the use and with the covenants, conditions,and development costs authorized by the DDLA. This finding is based on the facts and analysis set forth in the Staff Report and the Section 33433 Summary accompanying this Resolution, which may be briefly synopsized as follows: a. The fair market value of the Property has been determined to be approximately $1,643,000; and b. The purchase price to be paid for the Property by the Developers under the DDLA is $1,830,153 cash at closing, an amount greater than the fair market value of the Property, and such purchase price is subject to upward adjustment if a pending updated appraisal of a portion of the Property indicates an increase in the fair market value of such portion of the Property. BE IT FURTHER.RESOLVED, that,pursuant to Section 33433 of the Law, the Board hereby finds that the conveyance of the Property pursuant to the DDLA will assist in the elimination of blight in the Project Area and is consistent with the implementation plan adopted pursuant to Section 33490 of the Law. These findings are based on the facts and analysis set forth in the Section 33433 Summary and the Staff Report accompanying this Resolution, which may be briefly synopsized as follows: 324\071166768.2 3/3103 a. The Development will bring new infrastructure,new economic investment and new high quality residential development to an area which currently experiences significant manifestations of blight in the forms of substandard housing, inadequate infrastructure, inappropriate land uses including a former junkyard, little neighborhood interaction, high criminal activity, and high unemployment, thereby helping to eliminate these blighting conditions in the Project Area and providing affordable housing. b. The development of the Development will implement several specific goals of the Agency's Implementation Plan and is a specifically enumerated activity in the Implementation Plan for the Agency to fulfill its Low and Moderate Income Housing Fund expenditure and housing production obligations. BE IT FURTHER RESOLVED,in compliance with Section 33445 of the Law, that the Board hereby consents to the Infrastructure Improvements Financing Commitment and finds that (a)the Infrastructure Improvements are of benefit to the Project Area and the immediate neighborhood, (b)the appropriation of funds by the Agency for the Infrastructure Improvements will assist in the elimination of one or more blighting conditions inside the Project Area,and is consistent with the Agency's Implementation Plan; and(c)there are no other reasonable means available to the community to finance the Five Hundred Seventy Thousand Six Hundred Forty Nine Dollar($570,643)portion of the cost of the Infrastructure Improvements to be financed by the Agency. Facts and analysis in support of findings(a) and(b) are set forth in part above; facts and analysis in support of finding(c) may be briefly synopsized as follows: The County does not have current or reasonably anticipated future revenues to fund such cost, and,as a result there are no County funds allocated in the County's capital improvement budget to pay such costs. There are no current or reasonably anticipated other governmental funding sources to pay costs of the Infrastructure Improvements at the federal, state, or local level. BE IT FURTHER.RESOLVED, that construction of the Infrastructure Improvements is an integral component of the Development; that close coordination is required;between construction of the Infrastructure Improvements and the surrounding simultaneous construction of the Development; that timely completion of the Infrastructure Improvements is essential to the overall elimination of blight in this portion of the Project Area, and, in turn,to the successful redevelopment of the Property; and that,under these circumstances,construction of the Infrastructure Improvements can be most efficiently, timely, and cost-effectively performed by and under the supervision of the Developers and in accordance with the procedures set forth in Section 5.2 of the DDLA. BE IT FURTHER RESOLVED, that pursuant to Section 33433 of the Law, the Board hereby approves the DDLA and all ancillary documents; approves execution by the Agency Redevelopment Director of the DDLA and all ancillary documents in substantially the farm on file with the Clerk of the,Board and the Agency Secretary, with such changes as are approved by the Agency Redevelopment Director(such approval to be conclusively evidenced by the execution of the DDLA); and approves the sale of the Property by the Agency pursuant to the provisions of the DDLA., The Board hereby approves execution of the DDLA by an affiliate of 32M071166768.2 3/3/03 RCD or an affiliate of O'Brien(in place of RCD or O'Brien), provided the applicable requirements of Article 7 of the DDLA with respect to transfers are satisfied by such affiliate. BE IT]FURTHER RESOLVED that the Board designates the Clerk of the Board and the Secretary of the Agency as the custodian of the documents and other material which constitute the record of proceedings upon which the decision herein is based. These documents may be found at the office of the Agency at 651 fine Street,North Vying, 4th Floor Martinez, CA 94553. BE IT FURTHER RESOLVED that this Resolution shall take immediate effect from and after its passage. hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Beard of Supervisors on the state shown' 0 .�_X ATTSSTED JOHN SWEETEN, ard upervlsore 320\07\166768,2)ry/ Jl Jf 03 THE REDEVELOPMENT AGENCY OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on March 11, 2003,by the following vote: AYES: GIOIA, UnKm, GLOM and DeSUMM NOES: 2 ABSENT: NM ABSTAIN: Nm ***DISTRICT III VACANT*** Resolution No.: _RA2003-01 SUBJECT: (1)Authorizing execution of a Disposition, Development and Loan Agreement with.Resources for Community Development, a California non-profit public benefit corporation("RCD"), and The O'Brien Group, a California corporation ("O'Brien"), (2)malting findings and approvals pursuant to the California Environmental Quality Act and the California Community Redevelopment Law, (3)approving the expenditure of Agency Funds for the construction of certain infrastructure improvements, and(4)making subordination findings in connection with the Agency Loan to RCD. The Contra Costa County Redevelopment Agency RESOLVES THAT: The Board of Supervisors (the "Board") of the County of Contra Costa(the "County") adopted the Bay Point Redevelopment Plan by Ordinance No. 87-102 on December 29, 1987) and subsequently amended by Ordinance No. 94-64 on December 6, 1994 and Ordinance No. 99-05 on February 23, 1999(the "Redevelopment Plan"), which Redevelopment Plan sets forth a plan for redevelopment of the Bay Point Redevelopment Project Area(the "Project Area"). The Contra Costa County Redevelopment Agency(the "Agency") is responsible for administering the Redevelopment Plan to cause redevelopment of the Project Area, including assembly, site preparation and redisposition of property both within and outside the Project Area for private redevelopment consistent with the Redevelopment Plan. Pursuant to Section 33445 of the Community Redevelopment Law(Part 1 of Division 24 of the Health and Safety Code of the State of California(the "Law")), the Agency is authorized, with the consent of the Board,to pay part or all of the cost of the installation and construction of any building, facility, structure, or other improvement which is publicly owned and is of benefit to the Project Area. 3201071166687.3 3/3/03 RA2003-01 _. . .. ......... ......... ._.._._.. ... ........ ........__.. ......... ........ . ......... ......... .................................... _ The Agency owns or is in the process of acquiring an approximately 9;22-acre site (the "Property")located within the Project Area,bounded by Pullman Avenue, Bella Monte Avenue, Fairview Street and Widow Pass Road. The Agency desires to cause redevelopment of the Property through the construction by RCD of fifty-two(52)multifamily rental apartment units affordable to low and moderate income persons(the "Apartment Improvements") and the construction by O'Brien of sixty-nine(69) single family homes for owner occupancy by(the "Single Family Improvements") (collectively, the "Development"). The construction of certain infrastructure improvements(the "Infrastructure Improvements") including the construction of sewer and drainage facilities and traffic improvements on the streets bordering the Development, is necessary to the successful redevelopment of the Property and will therefore be of benefit to the entire community surrounding the Development, and the Project Area as a whole. The Agency desires to enter into a disposition, development and loan agreement(the "DDLA")with RCD and O'Brien(collectively the "Developers"), substantially in the form on file with the Clerk of the Board and the Agency Secretary, pursuant to which the Agency would sell the Property to the Developers and the Developers would develop the Development on the Property and undertake the design and construction of the Infrastructure Improvements, with a portion of the costs of such Infrastructure Improvements that serve the Apartment Improvements to be reimbursed by the Agency. The commitment and expenditure of Five Hundred Seventy Thousand'Six Hundred Forty Nine Dollar($570,649) in Agency funds for the Infrastructure Improvements serving the Apartment Improvements(the "Infrastructure Improvements Financing Commitment") is consistent with the Agency's five-year Implementation Plan (the "Implementation Plan"). No other reasonable means of financing the Five Hundred Seventy Thousand Six Hundred Forty Nine Dollar($570,649)portion of the cost of the Infrastructure Improvements to be paid by the Agency pursuant to the Infrastructure Improvements Financing;Commitment are available to the Agency, the County, or the community of Bay Point. Redevelopment of the Property pursuant to the DDLA will serve the purposes of Section 33334.2 of the Law, as well as the goals and objectives of the Redevelopment Plan,by assisting in the eliminationof blight in the Project Area and by improving and increasing the community's supply of affordable housing. The Agency intends to apply the Apartment Improvements to be developed in the Development toward satisfaction of its Project Area affordable housing production obligation under Section 33413(b)(2) of the Law. The Agency also intends to utilize the Apartment Improvements to be developed in Development to obtain replacement housing credits pursuant to Health and Safety Code Section 33413(x). 320\07\166687.3 3/3103 The Agency has placed on file a copy of the DDLA and the summary called for in Section 33433 of the Law (the "Section 33433 Summary"),and has made the DDLA and the Section 33433 Summary available for public inspection and copying pursuant to Section 33433 of the Law. The Section 33433 Summary is incorporated in this Resolution by this reference. By actions of October 2, 2004 and December 10, 2402, the Planning Commission of the County of Contra Costa(the "Planning Commission") found and determined,in compliance with Government Code Sections 65402(a)and(c), that the location, purpose and extent of the proposed disposition of the Property to the Developer for the development of the Development pursuant to the DDLA would conform to the County's General Plan. The Board and the Agency have conducted a duly noticed public hearing on the DDLA pursuant to Section 33433 of the Law for the purpose of receiving the input and comments of the public on the DDLA. The Board has made the findings and granted the consents required by Sections 33433 and 33445 of the Law in connection with Agency approval of the DDLA and funding of the Infrastructure Improvements. The County, serving as "lead agency" under the California Environmental Quality Act and the applicable stateand local implementing guidelines ("CEQA"), has prepared a negative declaration(including an initial study)that has evaluated(1)the development'of the Development on the Property, including construction of the Infrastructure Improvements; and(2) the disposition of the Property by the Agency, provision of financial assistance for the Development by the Agency, and development of the Infrastructure Improvements and the Development,pursuant to the proposed DDLA; (the "Negative Declaration").' The Agency has served as, and has complied with the requirements of,a "responsible agency" under the CEQA in connection with the processing and consideration of the Negative Declaration. The Negative Declaration, a copy of which is on file with the Clerk of the Board.and Agency Secretary, has served as the CEQA document for consideration and approval by the Agency and the Board of the DDLA, the disposition by the Agency of the Property,the financial assistance to be provided by the Agency pursuant to the DDLA, the ultimate development of the Development on the Property, and the construction of the Infrastructure Improvements by the Developers, and the related findings and determinations set forth in this Resolution and the companion resolution approved concurrently by the Board(the "DDLA Actions"). Pursuant to the DDLA, the Agency has agreed to provide a loan to RCD in the principal amount of Two Million Six Hundred Twenty Two Thousand Pour Hundred.Sixty Two Dollars ($2,622,462)for the development of the Apartment Improvements (thee Agency Loan"), to be evidenced by a promissory note(the "Agency Note")and secured by a deed of trust(the "Agency Deed of Trust"). 3701071166687.3 313!03 _. ......... ......... ...._.._. ....... .. .... ....._ .......... .........._............__......_...... .. .._...... ......... ......... ................_. _. _.... ......... ......... The Agency Loan is funded with Agency Low and Moderate Income Housing Funds and the Agency is required under the Community Redevelopment Law to impose rent and occupancy restrictions on the Apartment Improvements in connection with the Agency Loan. A Regulatory Agreement and Declaration of Restrictive Covenants (the "Agency Regulatory Agreement")has been prepared to implement this requirement of law. The Development will also he financed by a lean of the proceeds of Multifamily Housing Revenue Bonds issued by the County(the"Bond Loan") which will be evidenced by a loan agreement, a regulatory agreement, a reimbursement agreement and a promissory note secured by one or more deeds of trust on the portion of the Property where the Apartment Improvements will be constructed(collectively the "Bond Documents"). The Bond Documents will require subordination of the Agency Regulatory Agreement to the Bond Documents. Health and Safety Code Section 33334.14(a)requires certain findings to be made by the Agency prior to subordination of the Agency Regulatory Agreement. By staff report accompanying this Resolution and incorporated into this Resolution by this reference (the "Staff Report"), the Agency has been provided with additional information upon which the findings and actions set forth in this Resolution are based. NOW, THEREFORE, BE IT RESOLVED,that the Agency finds that the above recitals are accurate. BE IT FURTHER RESOLVED, that the Agency certifies its review and consideration of the Negative Declaration in accordance with CEQA. BE IT FURTHER RESOLVED, that the Agency finds and determines that the Negative Declaration adequately addresses the environmental issues pertaining to the DDLA Actions and properly concludes that the DDLA Actions will not have a significant effect on the environment; therefore, no further findings are required to be made by the Agency pursuant to 14 Cal. Code of Regulations, Section 15096(h). BE IT FURTHER RESOLVED, that, based on the foregoing, the Agency states its intention that the Negative Declaration serve as the environmental documentation for the Agency's consideration of the DDLA Actions in compliance with CEQA. BE IT FURTHER RESOLVED, that the Agency Redevelopment Director is hereby authorized and directed to file a Notice of Determination in accordance with 14 Cala Code of Regulations, Section 15075. BE IT FURTHER.RESOLVED, that,based on the information and analysis set forth in the Negative Declaration, there is no evidence that the DDLA Actions, including development of 3201071466687.3 3/3/03 the Development on the Property and construction of the Infrastructure Improvements, would have any potential for adverse impact on wildlife resources, and, therefore, a Certificate of Fee Exemption will be submitted with the Notice of Determination filed in connection with the DDLA Actions, as required by Public Resources Code Section 21089. BE IT FURTHER RESOLVED, that, pursuant to Section 33433 of the Law,the Agency hereby finds that the consideration to be given by the Developers under the DDLA is not less than the fair reuse value of the Property at the use and with the covenants, conditions, and development costs authorized by the DDLA. This finding is based on the facts and analysis set forth in the Staff Report and the Section 33433 Summary accompanying this Resolution, which may be briefly synopsized as follows: a. The fair market value of the Property has been determined to be approximately $1,643,000; and b. The purchase price to be paid for the Property by the Developers under the DDLA is $1,830,153 cash at closing, an amount greater than the fair market value of the Property, and such purchase price is subject to upward adjustment if a pending updated appraisal of a portion of the Property indicates an increase in the fair market value of such portion of the Property. BE IT FURTHER RESOLVED,that,pursuant to Section 33433 of the Law,the Agency hereby finds that the conveyance of the Property pursuant to the DDLA will assist in the elimination of blight in the Project Area and is consistent with the implementation plan adopted pursuant to Section 33490 of the Law. These findings are based on the facts and analysis set forth in the Section 33433 Summary and the Staff Report accompanying this Resolution, which may be briefly synopsized as follows: a. The Development will bring new infrastructure,new economic investment and new high quality residential development to an area which currently experiences significant manifestations of blightin the forms of substandard housing, inadequate infrastructure, inappropriate land uses including a former junkyard,little neighborhood interaction, high criminal activity, and high unemployment,thereby helping to eliminate these blighting conditions in the Project Area and providing affordable housing. b. The development of the Development will implement several specific goals of the Agency's Implementation Plan and is a specifically enumerated activity in the Implementation Plan for the Agency to fulfill its Low and Moderate Income Housing Fund expenditure and housing production obligations. BE IT FURTHER RESOLVED, in compliance with Section 33445 of the Law, that the Agency hereby approves the Infrastructure Improvements Financing Commitment and finds that (a)the Infrastructure Improvements are of benefit to the Project Area and the immediate neighborhood; (b) the appropriation of funds by the Agency for the Infrastructure Improvements will assist in the elimination of one or more blighting conditions inside the Project Area, and is consistent with the Agency's Implementation Plan; and(c)there are no other reasonable means 324107\166687.3 3/3/03 available to the community to finance the Five Hundred Seventy Thousand Six Hundred Forty Nine Dollar($570,649)portion of the cost of the Infrastructure Improvements to be financed by the Agency. Facts and analysis in support of findings(a)and(b)are set forth in part above; facts and analysis in support of finding(c)may be briefly synopsized as follows: The County does not have current or reasonably anticipated future revenues to fund such cost,and, as a result there are no County funds allocated in the County's capital improvement budget to pay such costs. There are no current or reasonably anticipated other governmental funding sources to pay costs of the Infrastructure Improvements at the federal, state, or local level. BE IT FURTHER RESOLVED, that construction of the Infrastructure Improovements is an integral component of the Development; that close coordination is required between construction of the Infrastructure Improvements and the surrounding simultaneous construction of the Development;that timely completion of the Infrastructure Improvements is essential to the overall elimination of blight in this portion of the Project Area, and, in turn,to the successful redevelopment of the Property; and that, under these circumstances, construction of the Infrastructure Improvements can be most efficiently,timely, and cost-effectively performed by and under the supervision of the Developers and in accordance with the procedures set forth in Section 5.2 of the DDLA. BE IT FURTHER RESOLVED, that pursuant to Section 33433 of the Law,the Agency hereby approves the DDLA and all ancillary documents; approves execution by the Agency Redevelopment Director of the DDLA and all ancillary documents in substantially the form on file with the Clerk of the Board and the Agency Secretary,with such changes as are approved by the Agency Redevelopment Director(such approval to be conclusively evidenced by the execution of the DDLA); and approves the sale of the Property by the Agencypursuant to the provisions of the DDLA. The Agency hereby approves execution of the DDLA by an affiliate of RCD or an affiliate of O'Brien(in place of RCD or O'Brien),provided the applicable requirements of Article 7 of the DDLA with respect to transfers are satisfied by such affiliate. BE IT FURTHER RESOLVED, that the Agency hereby approves the subordination of the Agency Regulatory Agreement and the Agency Deed of Trust to the Bond Documents, and finds that an economically feasible alternative method of financing the Apartment Improvements on substantially comparable terms and conditions to the Bond Loan, but without subordination, is not reasonably available. BE IT FURTHER RESOLVED that the Agency authorizes the Agency Redevelopment Director to enter into a subordination agreement subordinating the Agency Regulatory Agreement to the Bond Documents and to take such other actions and execute such other documents as are appropriate to effectuate the intent of the subordinations approved by this Resolution, provided that the subordination agreement contains commitments reasonably designed to protect the Agency's interests under the Agency Regulatory Agreement in the event of a default under the Bond Documents, including one or more of the protections described in Health and Safety Code Section 33334.14(a)(4)(A)-(D). 320107\166687.3 313103 BE IT FURTHER RESOLVED, that the Agency Redevelopment Director is authorized to take those actions delegated to the Agency Redevelopment Director in the DDLA. BE IT FURTHER RESOLVED, that the Agency hereby appropriates such funds as may be necessary to fulfill the Agencys obligations under the DDLA, and amends the Agency budget to the extent necessary to implement such appropriation. BE IT FURTHER RESOLVED that the Agency designates the Clerk of the Board and the Secretary of the Agency as the custodian of the documents and other material which constitute the record of proceedings upon which the decision herein is based. These documents may be found at the office of the Agency at 651 Pine Street,North Wing, 4th Floor Martinez, CA 94553. BE IT FURTHER RESOLVED that this Resolution shall take immediate effect from and after its passage. I HEREBY CERTIFY THAT THIS IS A TRUE AND CORRECT COPY OF AN ACTION TAKEN AND ENTERED ON THE MINUTES OF THE REDEVELOPMENT AGENCY ON THE DATE SHOWN ' - ATTESTED h JOHN SWEETEN AGENCY SECRETARY BY 320\071166687.3 3/3/03 DISPOSITION, DEVELOPMENT AND LOAN AGREEMENT (BAY VIEW COMMUNITY HOUSING) This Disposition, Development and Loan Agreement(the "Agreement"),is entered into as of the 11'4 day of March,2003,by and among the Contra Costa County Redevelopment Agency, a public body,corporate and politic(the"Agency"), Resources for Community' Development, a California non-profit public benefit corporation("RCD"), and The O'Brien Group, a California corporation("O'Brien") (RCD and O'Brien are referred to collectively herein as the"Developers")_with reference to the following facts,understandings and intentions of the parties. RECITALS A. These Recitals refer to and utilize certain capitalized terms which are defined in Article 1 of this Agreement. The parties intend to refer to those definitions in connection with the use of capitalized terms in these Recitals. B. The Boardof Supervisors of the County of Contra Costa(the"Board of Supervisors") adopted the Redevelopment Plan for the Bay Point Redevelopment Project Area (the "Redevelopment plan")by Ordinance No. 37-102, adapted on December 29, 1987. The Redevelopment'Plan was amended by Ordinance No. 94-64, adopted on December 6, 1994, Ordinance No.99-05,adopted on February 23, 1999, and Ordinance No. cj 9 -0� . The Redevelopment Plan established the Bay Point Redevelopment Project Area(the"Project Area."). The Agency is responsible for implementation of the Redevelopment Plan in the Project Area. The goals for the Redevelopment Plan include the provision of low and moderate income housing in the Project Area. C. The Property is an approximately 9.22 acre site bounded by Pullman Avenue, Bella Monte Avenue,Fairview Street and Willow Pass Road in the Project Area.. The Property is described in Exhibit A and mapped in Exhibit B attached to this Agreement and incorporated herein by this reference. D. The Agency and the Developers desire to cause development on the Property of the Development, consisting of fifty-two (52)multifamily rental apartment units and a childcare facility and sixty-nine(69)single family homes for owner occupancy. E. To effectuate this purpose, and upon satisfaction of certain preconditions to be satisfied by the Developers,the Agency,upon acquisition of the Property, intends to sell.the Property to the Developers, all as fully set forth in this Agreement. F. The Agency intends to apply the rental units to be developed in the Development toward satisfaction of its Project Area housing production obligation under Health and Safety 1 3201071161927.9 Code Section 33413(b)(2). The Agency also intends to utilize the Development to obtain replacement housing credits pursuant to Health and Safety Code Section 33413(a). G. The Agency has acquired the property with Low and Moderate Income Housing Funds. The Agency has prepared and placed on file a copy of the summary of the transaction contemplated by this Agreement. The County and the Agency have conducted a duly noticed public hearing on this Agreement, and the County and the Agency have made the required findings and approvals in connection with the disposition of the Property and other obligations of the Agency pursuant to this Agreement, all in conformance with the requirements of Health and Safety Code Section 33334.14, 33433, and 33445. H. Pursuant to the California Environmental Quality Act("CEQA") and its implementing guidelines, the County(in its capacity as "lead agency"), and the Agency(in its capacity as a"responsible agency")have prepared,reviewed and approved a negative declaration (including an initial study) designated as Agency Resolution No. (the "Negative Declaration") for this Agreement, and the transactions contemplated by this Agreement, following conduct of a duly noticed public hearing. The Negative Declaration has served as the environmental documentation for the Agency's and County's consideration and approval of this Agreement and the transactions contemplated by this Agreement. 1. The Agency has detennined that the Developers have the necessary expertise, skill and ability to carry out the commitments set forth in this Agreement and that this ..Agreement is in the Best interests, and will materially contribute to the implementation of,the Redevelopment Plan. The activities contemplatedd by this Agreement are set forth in the Ilmplementation Plan for the Project Area adopted by the Agency on November 16, 1999. - THEREFORE, the Agency and the Developers agree as follows: ARTICLE 1 DEFINITIONS AND EXHIBITS Section: l.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the following definitions shall apply throughout this Agreement-. (a) "Additional Parcels" means the portions of the Property designated as APN 096-020-079,APN 096-020-085, APN 096-020-087, and APN 096-020-088, which may be acquired by the Agency pursuant to this Agreement. The Additional Parcels are all within the Apartment Site. (b) "Agency" means the Contra Costa County Redevelopment Agency, a public body, corporate and politic. (c) "Agency Deed of Trust" means the deed of trust to be recorded against the Apartment Development, substantially in the form of Exhibit H, securing the Agency Note and naming the Title Company or its affiliate as trustee,and the Agency as beneficiary. 2 320\07\161927.9 (d) "Agency Documents" means, collectively,this Agreement,the Grant Deeds,the Agency Nate, the Agency Deed of Trust,and the Regulatory Agreement. (e) "Agency Grant Deeds" means the grant deeds of the Property to the Developers, each substantially in the form of Exhibit F-1 (for the Apartment Site)and Exhibit F- 2 (for the Single Family Site). (f) "Agency Infrastructure Assistance" means the grant of Five Hundred Seventy Thousand Six Hundred Forty Nine Dollars($570,649) from the Agency to RCD to fund the construction of RCD's portion of the Infrastructure Improvements as fnther set forth in Section 5.2. (g) "Agency Loan" means the Agency Loan to RCD pursuant to Article 4 of this Agreement. (h) "Agency Note" means the promissory note, substantially in the form of Exhibit G,evidencing R.0 1s obligation to pay a portion of the purchase price for the Property as more fully set forth in Section 3.2. (i) "Annual Operating Expenses" has the meaning given in Section 4.2(d). {j) "Apartment Development"means the Apartment Site and:the Apartment Improvements. (k) "Apartment Financing Plan"means RCD's plan for financing the acquisition of the Apartment Site and the development of the Apartment Improvements,to be approved by the Agency pursuant to Section 2.6'and which may be revised from time to time with the approval of the Agency pursuant to Section 2.6. (1) "Apartment Improvements" means the fifty-two(52)rental apartment units with appurtenant parking,landscaping and improvements to be constructed by RCD on the Apartment Site,including a community'facility and childcare center. (rn) "Apartment Site" means the south portion of the Property.to be conveyed to RCD for construction of the Apartment Improvements, approximately as shorn on the map attached hereto as Exhibit B. (n) "Apartment Site Purchase Price" means the portion of the;Purchase Price for the Property allocated to the Apartment Site pursuant to Section 3.2 of this Agreement. (o) "Beard of Supervisors" means the Board of Supervisors of the County. (p} "CDLA.C" means the California Debt Limit Allocation Committee. 3 320\07\161927.9 (q) "Certificate of Completion" means one of the certificates to be issued by the Agency pursuant to Section 5.10 of this Agreement. (r) "Construction Plans"means all construction documentation upon which the Developers, and the Developers' several contractors, shall rely in building each and every part of the Development(including landscaping,parking, and common areas) and shall include,but not necessarily be limited to,final architectural drawings, landscaping plans and specifications, final elevations,building plans and specifications (also known as "working drawings") and a time schedule for construction. (s) "County" means the County of Contra Costa, California. (t) "County Funds"means the funds to be loaned by the County to RCD in the anticipated amount set forth in the Financing Proposal for the Apartment Development and Section 2.5(c),or such other amount as may beset forth in the approved Apartment Financing Plan. (u) "Developers" means RCD and O'Brien, and their successors and assigns as permitted by this Agreement. (v) "Development" means the Property,the Apartment Improvements, and the Single Family Improvements. (w) "Developer Fee" means the fees to the Developers in an amount and for the purposes set forth in Section 5.12. (x) "Development Schedule"means the predevelopment and development schedule for the Development, attached hereto as Exhibit D-1 (Apartment Development) and Exhibit D-2(Single Family Development), as approved by the Agency. (Y) "Enviromnental Assessment Documents" shall mean: (i)the"Phase I Environmental Site Assessment, Clemen Environmental Services(CES)" report, dated September 3,1990; (ii)the"Phase I Environmental Site Assessment, AGRA,Earth and Environs ental Group (AGRA)",report,dated December 1997; (iii)the Results of Chemical Analyses on Two Soil Samples,CES",letter dated October 23, 1990; (iv)the"Phase II Environmental Site Assessment,AGRA",report dated January 1998; (v) the"Hazardous Materials Evaluation,2448 Willow Pass Road, Bay Point Redevelopment Project Area, Subsurface Consultants, Inc",report dated July 12, 1999; and(vi) the environmental clearance letter from the Health Services Department of Contra Costa County, dated October 24, 2000. (z) "Escrow" means the escrow established with the Title Company for the purpose of conveying the Property from the Agency to the Developers. (aa) "Event of Default"has the meaning set forth in Section 8.3 or 8.4 as applicable. 4 320\07\161927.9 (bb) "Final Development Plans"means the final development plans necessary for the Development to proceed as contemplated by this Agreement. If and when approved by the decision-making bodies, the Final Development Plans shall be attached to this Agreement as Exhibit E=land Exhibit E-2. (cc) "Final Subdivision Map"means the final subdivision map, subdividing the Single Fancily Site into sixty-:nine(69)lots. (dd) "Financing flans" means the Apartment Financing Plan and the Single Family Financing Plan. (ee) "Financing Proposals" means the proposals for financing.costs of development of the Development as envisioned by the Developers and approved by the Agency as of the date of this Agreement. Prior to submission of the proposed Financing Plans,the Financing Proposals may be revised from time to time with the approvalof the Agency. The Financing Proposals are attached to this Agreement as Exhibits C-1 and CC-2. Any amended Financing Proposal approved by the Agency shall also be attached to this Agreement as addenda to Exhibit C. Of) "General Plan Amendment" shall mean the amendment to the general plan changing the land use designation of the Single Family Site from Single-Family Residential High. Density to Multiple-Family Residential High Density as'is required for construction of the Single Family Improvements as contemplated by this Agreement. -- (gg) "Crass Revenue"-has-the meaning given in Section 4.2(d). .ih) "'Hazardous Materials"means: (1) any "hazardous substance" as defined in Section 101(14)of Comprehensive Environmental Response, Compensation, and Liability Act 1980 ("CERCLA") (42 U.S.C. Section 9601(14))or Section 25281(d)or 25316 of the California Health an4 Safety Code at such time; (2) any "hazardous waste," "infectious waste" or "hazardous material" as defined in Section 25117, 25117.5 or 255010) of the California Health and Safety Code at such time, (3) any other waste, substance or material designated or regulated in any way as "toxic" or"hazardous" in the RCRA(42 U.S.C. Section 6901 et sem.), CERCLA.Federal Water Pollution Control Act(33 U.S.C. Section 1521 et§N.), Safe Drinking Water Act(42 U.S.C. Section 3000 (f)et M.),Toxic Substances Control Act(15 U.S.C. Section 2601 et sem.),Clear Air Act(42 U.S.C. Section 7401 et seg.), California Health and Safety Code(Section 25100 et 5 320107M1927.9 Section.3900 et seq.),or California Water Code(Section 1304 et seMc.) at such t7&e; and (4) any additional wastes, substances or material which at such time are classified, considered or regulated as hazardous or toxic under any other present or future environmental or other similar laws relating to the Development. The term "Hazardous Materials" shall not include: (i)construction materials,gardening materials,household products,office supply products or janitorial supply products customarily, used in the construction, maintenance,rehabilitation, or management of residential property or associated buildings and grounds, or typically,used in household activities, or(ii) certain substances which may contain chemicals listed by the State of California pursuant to California Health and Safety Code Sections 25249.8 et M., which substances are commonly used by a significant portion of the population living within the region of the Development,including,but not limited to, alcoholic beverages, aspirin, tobacco products,Nutrasweet and saccharine. (ii) "Hazardous Materials Laws"means all federal, state, and local laws, ordinances, regulations,orders and directives pertaining to Hazardous Materials in, on or under the Development or any portion thereof. (jj) "HCD" means the State of California Department of Housing and Community Development. - (kk) "Infrastructure Agreement means the Agreement by and between RCD and O'Brien setting forth a schedule for construction of the Infrastructure Improvements, and RCD's and O'Brien's agreement as to the division of responsibility and cost for the construction of the Infrastructure Improvements, consistent with the terns of this Agreement. (11) "Infrastructure Improvements" means certain of the infrastructure improvements required for the Development, as listed in Exhibit K attached hereto and incorporated herein. (mm) "Lender"s Share of Residual Receipts" has the meaning given in Section 4.2(d). (nn) "Management Agent" means The John Stewart Company or other management agent retained by RCD and approved by the Agency in accordance with the provisions of Sections 5.13 and 6.8 to manage the Apartment Improvements. (oo) "MHP Funds" means the Multifamily Housing Program loan funds from HCD in the anticipated amount set forth in the Financing Proposal for the Apartment Development, or such other amount as may be set forth in the approved Apartment Financing Plan. 6 3241071161927.9 (pp): "O'Brien" means The O'Brien Group,'a California corporation and its successors and assigns as permitted by this Agreement. (qct "Partnership" means the limited partnership to be formed,of which RCD or an affiliate of RCD will be the managing general partner, formed pursuant to the partnership Agreement. (rr) "Partnership Agreement" means the limited partnership agreement of the Partnership and related documents(including,without limitation, a budget for the use of capital contributions,any funding agreement,any option for RCD to repurchase the Apartment Development from the Partnership, and any,ground lease or purchase and sale agreement with respect to the lease or sale of the,Apartment Site to the Partnership or other entity)approved by the Agency pursuant to>Section 7.4(d). (ss) "Project Area" means the Bay Point Redevelopment Project Area. (tt) "Property" means the real property to be redeveloped by the Developers pursuant to this Agreement,which real property is more particularly described in Exhibit A. (uu) "Purchase Price"'means the purchase price to be paid to the Agency by the Developers for the Property pursuant to Section 3.2 below. (vv) "RCD" means Resources for Community Development, a California nonprofit public benefit corporation.,and its successors and assigns as permitted by this- Agreement, (WW) "Reciprocal Easement Agreement"means that reciprocal easement agreement executed by RCD and O'Brien and recorded against the Apartment Site and Single Family Site,providing for reciprocal easements over the private lane which provides access to the Apartment Site and Single Family Site, and providing certain restrictions on the use and for maintenance of the private lane. (xx) "Redevelopment Plan"means the Redevelopment Plan for the Bay Point Redevelopment Project Area, as hereafter amended from time to time. (YY) "Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants, substantially in the form of Exhibit 1,to be recorded against the Apartment Development pursuant to Section 4.4. (zz) "Residual Receipts" has the meaning given in Section 4.2(d). (aaa) "Security Financing Interest"has the meaning set forth in Section 9.1. (bbb) "Siino Parcels" means the portion of the Property designated as APN 096- 020-068, APN 096-020-084, and APN 096-020-486. 7 3201071161827.9 (cce) "Single Family Development" means the Single Family Site and the Single Family Improvements. (ddd) „Single Family Financing Plan"means O'Brien's plan for financing the acquisition of the Single Family Site and the development of the Single Family Improvements,to be approved by the Agency pursuant to Section 2.7 and which may be revised from time to time with the approval of the Agency pursuant to Section 2.7. (eee) "Single Family Improvements"means the sixty-nine(69)owner- occupancy single family units, with appurtenant parking, landscaping, and improvements to be constructed by O'Brien on the Single Family Site. (fff) "Single Family Site" means the north portion of the Property to be conveyed to O'Brien for construction of the Single Family Improvements, approximately as shown on the map attached hereto as Exhibit B. (ggg) "Single Family Site Purchase Price" means the portion of the Purchase Price for the Property allocated to the Single Family Site pursuant to Section 3.2 of this Agreement. (hhh) "Tax Credit Funds" means the proceeds from the sale of lunited partnership interests in the Partnership in the anticipated amount set forth in the Financing Proposal for the Apartment Developrrient, or such other amount as may be set forth in the approved Apartment Financing Plan. (iii) "TCAC" means the California Tax Credit Allocation Committee. 6J) "Term" means the term of this Agreement,which shall consist of the period commencing on the date of execution of this Agreement and continuing until the later of (1) fifty-five(55)years following the issuance of a certificate of occupancy for the Apartment Improvements, or(2)repayment in full of the Agency Loan and all interest due thereon. (kkk) "Title Company"means the Walnut Creek,California office of First American Title Company. (111) "Transfer" has the meaning set forth in Section 7.1. Section 1.2 Exhibits. The following exhibits are attached to and incorporated in the Agreement: S 320W7\161927.9 Exhibit A: Legal Description of the Property Exhibit B: Map Showing Location of the Property and the General Designation of the Apartment Site, and the Single Family Site, Exhibit C-1: Financing Proposals(Apartment Improvements) Exhibit C-2: Financing Proposals(Single Family Improvements) Exhibit D-1: Development Schedule(Apartment'Improvements) Exhibit D-2: Development Schedule(Single Family Improvements) Exhibit E-1 Final Development Plan(Apartment Improvements) Exhibit E-2: Final Development Plan(Single Family Improvements) Exhibit F-1 Form of Agency Grant Deed(Apartment Improvements), Exhibit F-2: Form of Agency Grant Deed(Single Family Improvements) Exhibit G: Form of Agency Mote Exhibit H: Form of Agency Deed of Trust Exhibit I Regulatory Agreement and Declaration of Restrictive Covenants Exhibit J: Agency Resolution 88-9 (Prevailing Wages) Exhibit K: Infrastructure Improvements Exhibit L: Forin of Certificate of.Co pletion ARTICLE 2 PREDISPOSITION R.EQU REMENTS Section 2.1 Conditions Precedent to Disposition of Property. The requirements set forth in this Article Two are conditions precedent to the Agency's obligations to convey the Property to the Developers, Except as otherwise provided in Section 5.2(b), the Agency's obligation to convey the Property to the Developers shall be subject to the satisfaction of all such conditions precedent for both the Apartment Site and the Single Family Site prior to June 30, 2005, unless a later date is mutually agreed upon by the Agency Redevelopment Director and the Developers. Additional conditions precedent to the Agency's obligation to convey the Property are set forth in Sections 3.4 and 3.5. 9 32{!1074181927.9 Section 2.2 Schematic Design Plans. As of the date of this Agreement the Agency has approved the schematic design plans for the Apartment Improvements and the Single Family Improvements. Section 2.3 Final Development Plans, Final Subdivision Map and General Plan Amendment. No later than the dates shown on the Development Schedule,the Developers shall apply for final approval by the County of the Final Development Plans. No later than the dates shown on the Development Schedule, O'Brien shalt apply for final approval by the County of the Final Subdivision Map and the General Plan Amendment. Approval by the County of the Final Development Plans, the Final Subdivision.Map and the General Plan Amendment, and the passage of any time period required by law to render such approvals effective, shall be a condition precedent to the Agency's obligation to convey the Property to the Developers. The Developers acknowledge that execution of this Agreement by the Agency does not constitute approval by the County of any required permits, applications, allocations or maps, and in no way limits the discretion of the County in the permit, allocation and approval process. The Agency shall render all reasonable assistance to the Developers in obtaining any necessary County or other governmental permits, approvals,locations and maps. As of the date of this Agreement,the County has approved the Final Development Plan for the Apartment Site. Section 2.4 Other Governmental Approvals. Promptly following County approval of the Final Development Plans,the Developers shall apply for and exercise diligent good faith efforts to obtain all-other governmental approvals, including but not limited to building permits, necessary for development and operation of the Development. Except as otherwise provided herein,procurement by the Developers of all other governmental approvals(including the building permits), shall be a condition precedent to the Agency's obligation to convey the Property to the Developers. Section 2.5 Anartiment Development Funding Applications. (a) Tax Credit Funds; Bond Allocation. RCD and the County shall submit an application to CDLAC for an allocation of multifamily housing revenue bonds in 2403. Upon receipt of'the bond allocation from CDLAC, RCD shall submit a timely and complete application to ICAC for apreliiminary tax credit reservation. Upon award of the necessary preliminary reservation from TCAC,RCD shall exercise diligent good faith efforts to obtain a funding commitment from a reputable equity investor reasonably acceptable to the Agency for the Tax Credit Funds. Such funding commitment shall be in a form reasonably acceptable to the Agency. Procurement of a CDLAC allocation,TCAC preliminary reservation and an acceptable funding commitment for the Tax Credit Funds for the Apartment Improvements shall be a condition precedent to the Agency's obligation to convey the Property to the Developers. If RCD and the County are not successful in obtaining a bond allocation from CDLAC in their first application, RCD and the County shall subunit a second application to CDLAC for a bond allocation in the next round. If such second application'is unsuccessful,the Agency and the Developers shall confer in good faith fora period not to exceed sixty(60) days to determine if RCD and the Agency should subunit a further application to CDLAC or if a feasible and mutually 10 3201471161927.9 acceptable alternate arrangement can be made to finance the Apartment Improvements. If no agreement is reached by the parties within such sixty(60)-day period regarding the alternative courses of action described in the preceding sentence,this Agreement may be terminated in accordance with the provisions of Section.8.2. (b) MHP Funds. RCD shall submit a timely and complete application to HCD for an allocation of MHP Funds no later than March 18, 2003. (c) Cg3MV Funds. RCD shall submit a timely and complete application to the County for an allocation of County Home Investment Partnership Act funds ("HOME Funds"), County Housing and Community Development Act funds ("CDBG Funds"), and County Housing Opportunities for Persons with AIDS Program funds("HOPWA Funds")no later than March 28,2003. As of the date of this Agreement RCD has received a commitment from the Countyfor One Million Three Hundred Seventy Eight Thousand Dollars($1,378,000)in HOME Funds and CDBG Funds combined, and RCD has submitted an application to the County for Three Hundred'Fifty Thousand Dollars ($350,000)in HOPWA Funds: Section 2.6 Apartment Financing Plan:. By not later than the date shown on the Development Schedule,RCD shall submit for Agency approval an Apartment Financing Plan containing the following: (a) An updated'"sources and uses"breakdown of the costs of purchasing the Apartment Site and constructing the Apartment Improvements, and an updated operating proforma for the Apartment Improvements. Such updated sources and uses breakdown shall reflect RCD's then current expectations for funding sources and development casts and may be in a form substantially similar to the most recently revised Financing Proposal approved by the Agency,or in such other fohn as is mutually agreed upon by the parties. The sources and uses breakdown shall detail the proposed uses of the Developer Fee to RCD and shall'provide for a Developer Fee to RCD in the total amount and payable in the manner set forth in Section 5.12. (b) Copies of all required funding commitments for construction and permanent financing for the Apartment Improvements, including a preliminary tax credit reservation and an executed commitment letter from an equity investor acceptable to the Agency for the Tax Credit Funds. (c) Any other information that is reasonably necessary to the Agency in determining that RCD has the financial capability to pay all costs of purchasing the Apartment Site and constructing the Apartment Improvements, such as evidence of the availability of equity funds required to construct the Apartment Improvements,other than tax credit investor equity. The Agency shall review the Apartment Financing Plan and any proposed amendments of the Apartment Financing Plan to determine if,in the Agency's reasonable judgment,RCD has the financial capability(taking into account all committed funds), to pay all realistically established costs of purchasing the Apartment Site and constructing the Apartment Improvements. The Agency shall either approve or disapprove the Apartment Financing Plan and any proposed amendments of the Apartment Financing Plan in writing within ten(10)business;days of receipt. ll 320/0711 61927.9 If disapproved,the Agency shall give specific reasons for disapproval. If the Apartment Financing Plan is disapproved, RCD may resubmit,and the Agency shall promptly review, a revised Apartment Financing Plan that addresses the reasons for disapproval, and the Agency shall grant RCD a reasonable extension of the time deadlines set forth in this Agreement as required to restructure the Financing Plan, subject to the outside time limit for completion set forth in Section 8.12 below. Approval of the Apartment Financing Plan by the Agency shall be a condition precedent to the Agency's obligation to convey the Property to the Developers. Section 2.7 Single Family Financing PIan. By not later than the date shown on the Development Schedule, O'Brien shall submit for Agency approval a Single Family Financing Plan containing the following; (a) An updated "sources and uses" breakdown of the costs of purchasing the Single Family Site and constructing the Single Family Improvements. Such updated sources and uses breakdown shall reflect O'Brien's then current expectations for funding sources and development costs and may be in a form substantially similar to the most recently revised Financing Proposal approved by the Agency,or in such other form as is mutually agreed upon by the parties. The sources and uses breakdown shall detail the proposed uses of the Developer Fee to O'Brien and shall provide for a Developer Fee to O'Brien in the total amount and payable in the manner set forth in Section 5.12. (b) Copies of all required funding commitments for construction financing, as specified in the Financing Proposal. (c) Any other.information that is reasonably necessary-to assist-the Agency in determining that O'Brien has the financial capability to pay all costs of purchasing the Single Family Site and constructing the Single Family Improvements,including, for example, identification and substantiation of the source and timing of equity commitments, and a proposed homeowners' association budget. The Agency shall review the Single Family Financing Plan and any proposed amendments of the Single Family Financing Plan to determine if, in the Agency's reasonable judgement, O'Brien has the financial capability(taking into account all committed funds),to pay all realistically established costs of purchasing the Single Family Site and constructing the Single Family Improvements. The Agency shall either approve or disapprove the Single Family Financing Plan and any proposed amendments of the Single Family Financing Plan in writing within ten(10)business days of receipt. If disapproved,the Agency shall give specific reasons for disapproval. If the Single Family Financing Plan is disapproved, O'Brien may resubmit, and the Agency shall promptly review, a revised Single Family Financing Plan that addresses the reasons for disapproval, and the Agency shall grant O'Brien a reasonable extension of the time deadlines set forth in this Agreement as required to restructure the Financing Plan, subject to the outside time limit for completion set forth in Section 8.12 below. Approval of the Single Family Financing Plan by the Agency shall be a condition precedent to the Agency's obligation to convey the Single Family Site to O'Brien. 12 3201071181927.9 Section 2.8 Evidence of Availability of Funds. No later than the date shown in the Development Schedule, the Developers shall submit to the Agency evidence reasonably satisfactory to the Agency that any'conditions to the release or expenditure of the initial draw of funds described in the approved Financing Plans as the sources of funds to pay the coasts of purchasing the Property and constructing the Development have been met(or will be met upon conveyance of the Property to the Developers and the payment of funds which will be available at the time of conveyance) (or in the case of approvals,permits, and authorizations which are conditioned upon conveyances reasonable evidence that such approvals,permits, or authorizations will be received promptly after conveyance),and that such funds,(including draws subsequent to the initial draw of funds)will be available upon such conveyance for purchasing the Property and constructing the Development. Submission by the Developers, and approval by the Agency,of such evidence of funds availability shall be a condition precedent to the Agency's obligation to convey the Property to the Developers. Section.2.9 Construction Plans. No later than the date the Developers apply for building permits for the Development,the Developers shall complete the Construction Plans, and shall deliver to the Agency a set of the completed Construction Plans for Agency review and approval. The Agency shall, if the Construction Plans substantially conform to the provisions of this Agreement,the Final Development Plans and the Schematic Design Plans,approve in writing such Construction.Plans and no further filing by the Developers or approval by the Agency thereof shall be required except with respect to any material change.- Unless rejected by the Agency for their failure to comply with the foregoing requirements within ten(10)business days of submission by the Developers, the Construction Plans shall be deemed accepted. If rejected by the Agency in whole or in part, the Developers shall submit new or corrected Construction Plans within thirty(30) days of notification of the Agency's rejection and the reasons therefore. The Agency shall then have fifteen(15) days to review and approve the Developers'new or corrected Construction Plans. The provisions of this section:relating to time periods for approval,rejection, or resubmission of new or corrected Construction Plans shall continue to apply until the Construction Plans Have been approved by the Agency. Any changes to the Construction Plans required by the County during building permit review shall be deemed approved by the Agency. 13 320107\161927.9 Section 2.10 Rigtht of Entry to Perform Studies. (a) Tem�orM Right of Entry. The Agency hereby grants a right of entry to the Property to the Developers for the sole purposes of performing a land survey, and conducting soils and other testing which require access to the Property(the "Temporary Right of Entry"). The Developers agree at all times to keep the Property free and clear of all liens,encumbrances, and clouds upon title that could result from the exercise of the Temporary Right of Entry. Notwithstanding any other provision of this subsection(a),RCD, its successors and assigns shall satisfy the foregoing obligations as they pertain to the Apartment Site,and O'Brien, its successors and assigns shall satisfy the foregoing obligations as they pertain to the Single Family Site. (b) Indemni Without limiting the generality of the indemnification set forth in Section 10.7 below, and subject to the division of liability between the Developers set forth in the last sentence of this subsection(b), the Developers agree to indemnify,defend, and hold the Agency harmless against all claims, including but not limited to mechanics liens and personal or property damage, arising from the entry of the Developers or their agents, employees,contractors or subcontractors onto the Property, or created as a result of the exercise of this Temporary Right of Entry. The Developers further agree that all survey and testing work performed pursuant to this Temporary Right of Entry shall be made at the Developers' sole cost. Notwithstanding any other provision of this subsection(b),RCD, its successors and assigns shall provide the foregoing indemnity to the Agency with respect to the Temporary Right of Entry as it pertains to the Apartment Site, and O'Brien,its successors and assigns shall provide the foregoing indemnity to the Agency with respect to the Temporary Right of Entry as it pertains_ to the Single Family Site. Section 2.11 Aueney Acquisition of Additional Parcels. [depending on timing of ongoing acquisitions,this section may not be necessary] (a) Acquisition Condition. The Agency's obligation to convey the Property to the Developers is conditioned on the Agency's acquisition of the Additional Parcels in the manner specified in this Section 2.1-1. If the Agency has not obtained fee title to, or orders of possession for-all Additional Parcels by ,then this Agreement may be terminated by either the Agency or the Developers pursuant to section 8.2. (b) Voluntary Acquisition. The Agency shall conduct appraisals and meet its obligations pursuant to California Government Code Sections 7267, 7267.1 and 7267.2 with respect to making offers for voluntary acquisitions of the Additional Parcels. Any agreements the Agency enters into for purchase of any of the Additional Parcels shall be contingent on: (a) the approval of the Agency Board; and(b) the Agency entering into agreements to purchase, and/or obtaining an order of possession, for all the Additional Parcels. Promptly following the Agency's entry into agreements for voluntary acquisition of, or procurement of an order of possession pursuant to Section 2.11(e)below for all Additional Parcels,the Agency shall proceed diligently, utilizing Agency funds,to acquire the Additional Parcels for which the Agency has entered into voluntary agreement pursuant to this section 2.11(b). 14 320107\161927.9 (c) Excess Acquisition Costs. In the event that the Agency reasonably determines that the total of the purchase prices payable to the sellers of the Additional Parcels will exceed the total appraised value of the Additional Parcels by more than ten percent(10%) of such appraised value, the Agency shall have the right to abandon acquisition and terminate this Agreement pursuant to Section 8.2. (d) Resolution of Necessity. If the Agency has been unable to enter into a voluntary acquisition agreement to acquire the Additional Parcels within sixty(60)days after making the offerspecified in(b)above,then the Agency shall schedule hearings regarding resolutions of necessity authorizing acquisition of the Additional Parcels by exercise of the power of eminent domain. Such hearings shall be scheduled by the Agency within one hundred twenty(120) days after making the offer specified in(b) above. The Developers acknowledges that the Agency has discretion in determining whether or not the Agency should adopt resolutions of necessity and,therefore, agrees that nothing in this Agreement obligates the Agency to adopt resolutions of necessity for any parcel(s)not subject to voluntary acquisition agreements. In the event the Agency does not adopt resolutions of necessity within sixty(60) days after the date set for a hearing for any of the Additional'Parcels, then this Agreement may be terminated in accordance with Section 8.2. (e) Condemnation Action. If the Agency adopts a resolution;of necessity for the Additional Parcels, then the Agency shall proceed diligently to: (1)file condemnation actions for the Additional Parcels,and exercise daze diligence and best efforts in its prosecution to final judgment of such condemnation actions; (2)apply for and use its best efforts to obtain orders for possession to take'possession of the.Additional Parcels pursuant to California Cade of Civil Procedure Sections 1255.410 et sem;.; and(3) following'procurement of orders of possession for the Additional Parcels for which resolutions of necessity was adopted,diligently pursue the eminent domain actions until the final judgment is rendered.' Section 2.12 R_ecipmeal Easement Awieernent. O'Brien and RCD shall execute the Reciprocal Easement Agreement in the farm approved by the Agency,which approval shall'not be unreasonably withheld.. The Reciprocal Easement Agreement shall be recorded concurrently with close of Escrow. ARTICLE 3 DISPOSITION OF PROPERTY Section 3.1 Sale and Purchase. Provided the pre-disposition requirements set forth in Article Two and the additional closing conditions set forth.in Section 3.4 have been satisfied, the Agency shall sell the Apartment Site to RCD and the Single Family Site to O'Brien and RCD shall purchase the Apartment Site from the Agency and O'Brien shall purchase the Single Family Site fiom the Agency, pursuant to the terms, covenants,and conditions of this Agreement. Section'3.2 Purchase Price. 15 3201071161927.9 (a) Subject to the provisions of subsection 3.2(b)below(which provides for a possible upward_adjustment), thePurchasePrice of the Property is One Million Eight Hundred Thirty-Thousand One Hundred Fifty-Three Dollars($1,834,153), of which Seven Hundred Fourteen Thousand Sic Hundred Forty Dollars($714,640)is allocated to the Apartment Site and One Million One Hundred Fifteen Thousand Five Hundred Thirteen Dollars($1,115,513)is allocated to the Single Family Site. (b) The Purchase Price stated above is based on the Agency's estimate of the fair market value of the Property, and includes an estimated fair market value of One Million Four Hundred Fourteen Thousand One Hundred Fifty-Three Dollars($1,414,153),for the Siino Parcels. The Agency has requested an update of the appraisal of the Siino Parcels. If the appraisal update indicates that the fair market value of the Siino Parcels exceeds One Million Four Hundred Fourteen Thousand One Hundred Fifty-Three Dollars($1,414,153),the Purchase Price shall be adjusted upward by the amount by which the fair market value of the Siino Parcels pursuant to the appraisal update exceeds One Million Four Hundred Fourteen Thousand One Hundred Fifty-Three Dollars($1,414,153).. Within thirty(30) days of executing this Agreement, the Agency shall provide Developers with a copy of the appraisal update for the Siino Parcels, together with a letter setting forth the Agency's final determination of the Purchase Price of the Property pursuant to this subsection(the "Agency Purchase Price Determination:Letter"). If the final Purchase Price, as set forth in the Agency Purchase Price Determination Letter, exceeds the Purchase Price set forth in Section 3.2 (a)above by more than ten percent(10%),the Developers may,within fifteen(15) days of the date of their receipt of the Agency Purchase Price Determination Letter, elect to terminate this Agreement pursuant to Section 8.2 below. If the Developers do not elect to terminate the Agreement and consequently accept the Purchase Price, as increased "pursuant to this subsection,the increased amount of the Purchase Price shall be allocated twenty-five percent(25%) to the Apartment Site Purchase Price and seventy-five percent(75%)to the Single Family Site Purchase Price, which reflects the relative square footage of the Siino Parcels included within each site. (c) RCD shall pay to the Agency the Apartment Site Purchase Price in cash at close of Escrow. (d) O'Brien shall pay the Agency the Single Family Purchase Price in cash at close of Escrow. Section 3.3 Opening-Escrow. To accomplish the purchase and transfer of the Property from the Agency to the Developer, the parties shall establish the Escrow with the Title Company. The parties shall execute and deliver all written instructions to the Title Company to accomplish the terns hereof,which instructions shall be consistent with this Agreement. Section 3.4 Close of Escrow for Apartment Site. Except as set forth in Section 5.2(b), Escrow for the conveyance of the Apartment Site shall close on a date mutually acceptable to the Agency and the Developers within thirty (30)days following the date on which all conditions precedent to conveyance of the Apartment Site and the Single Family Site set forth in Article Two have been satisfied,but in no event later than June 30,2005,or such later date that the Agency and the Developers agree upon. The Agency shall convey the Apartment Site to RCD 16 320\07\161927.9 by executing and delivering an Agency Grant Deed to RCD,substantially in the form of Exhibit F-1;provided.,however,that if, at the time of close of Escrow,the Agency possesses only an order of possession for any of the Additional Parcels,the Agency shall convey its right of possession to such Additional Parcels to RCD at the close of Escrow by right of entry, lease,or other appropriate document. When the Agency thereafter obtains fee title to such Additional Parcels,the Agency shall convey such title to RCD by Agency Grant Decd, substantially in the form.of Exhibit F-1_and subject to the condition of title specified in Section 3.6(a). The Agency shall cooperate with RCD and RCD's lender in obtaining title insurance for the Additional Parcels if the Agency initially conveys only a right of possession and not fee title,provided, however,that the Agency shall not be required to bear any additional cost, accept any additional obligation,or waive any benefit under this Agreement in connection with procuring such title insurance,-other than agreeing to execute an.indemnification agreement for the benefit of the Escrow Holder/title insurer in the form typically required by the Escrow Holder/title insurer iri such circumstances: In addition to the conditions pLegedent to conveyance set forth in Article Two, the following conditions shall be satisfied prior to or concurrently with, and as conditions of, conveyance of the Apartment Site by the Agency to RCD: (a) RCI!shall provide the Agency with certified copies of corporate authorizing resolutions, approving the Agency Documents to be executed by RCD,as applicable, and RCD's execution of the Agency Documents. (b) RCD shall have executed and delivered to the Agency the Agency Note, the Agency Deed of Trust,the Regulatory Agreement, and any other documents and instruments required to be executed and delivered by the terms of this Agreement, all in form and substance reasonably satisfactory to the Agency. (c) RCD shall have furnished the Agency with evidence of the insurance coverage meeting the general insurance requirements set forth in Section 6.8. (d) The Regulatory Agreement shall have been recorded against the Apartment Site,as a lien subject only to the exceptions authorized by this Agreement or created by the Agency's actions. (e) The Agency Deed of Trust shall have been recorded against the Apartment Site and there shall have been issued to the Agency by the Title Company, for the Agency Deed of Trust, a 1970(without amendments or revisions)ALTA LP-10 Lenders Policy of title insurance in the amount of Dollars($ '), with CLIA Endorsements dos. 100, 101.2 (if subsequently requested by the Agency), 102.5, 103.1, 116, and such other endorsements as the.Agency may reasonably request,which shall insure the Agency Deed of Trust,as a lien upon the Property subject only to the exceptions authorized by this Agreement. CLTA Endorsements Nos. 101.2 (if subsequently requested by the Agency), 102.5 and 116 are to be issued at a later time. 17 320\On161927.9 ....................... .................... ................ (f) The Reciprocal Easement Agreement shall have been recorded against the Apartment Site. (g) There shall exist no condition, event or act which would constitute a material breach or default under this Agreement or any other Agency Document or which,upon the giving of notice or the passage of time, or both,would constitute such a material breach or default. (h) All representations and warranties of RCD contained in any Agency Document shall be true and correct in all material respects as of the close of Escrow. Section 3.5 Close of Escrow for Single Family Site. Except as set forth in Section 5.2(b), Escrow for the conveyance of the Simgle Family Site shall close on a date mutually acceptable to the Agency and the Developers within thirty(30)days following the date on which all conditions precedent to conveyance of the Single Family Site and the Apartment Site set forth in Article Two have been met,but in no event later than June 30,2005 or such later date that the Agency and the Developers agree upon. The Agency shall convey the Single Family Site to O'Brien by executing and delivering the Agency Grant Deed in the form shown in Exhibit F-2 to this Agreement and subject to the condition of title specified in Section 3.6(b). In addition to the conditions precedent to conveyance set forth in Article Two,the following conditions shall be satisfied prior to or concurrently with, and as conditions Of, conveyance of the Single Family Site: (a) O'Brien shall provide the Agency with certified copies of corporate authorizing resolutions, approving the Agency Docum6fits to be executed by O'Brien, and O'Brien's execution of the Agency Documents. (b) O'Brien shall have fin-nished the Agency with evidence of the insurance coverage meeting the general insurance requirements set forth in Section 6.8. (c) O'Brien shall have obtained approval from the County for the Final Subdivision Map which shall'be recorded concurrently with close of Escrow. (d) The Reciprocal Easement Agreement shall have been recorded against the Single Family Site. (e) There shall exist no condition, event or act which would constitute a material breach or default under this Agreement or any other Agency Document or which,upon the giving of notice or the passage of time,or both,would constitute such a material breach or default. (f) All representations and warranties of O'Brien contained in any Agency Document shall be true and correct in all material respects as of the close of Escrow. 18 320\07\161927.9 ................... ................. Section 3.6 Condition of Title. (a) Upon the close of Escrow on the Apartment Site, RCD or its permitted assignee hereunder shall have insurable fee title to the Apartment Site which shall be free and clear of all liens,encumbrances, clouds and conditions,rights of occupancy or possession, except. (1) applicable building and zoning laws and regulations, (2) the provisions of this Agreement; (3) the provisions of the Agency grant Deed(ApartmentSite), (4) the provisions of the Regulatory.Agreement; (5) the provisions of the Agency Deer"!of Trust; (6) any lien for current taxes and assessments or taxesand assessments accruing subsequent to recordation of the Agency Errant Deed (Apartment Site); (7) The Reciprocal Easement Agreement; and (8) conditions, covenants,restrictions or easements shown as exceptions in the preliminary title reports for-the Property approved by RCD, which approval shall not be unreasonably withheld. (b) Upon the close of Escrow on the Single Family Site, O'Brien or its permitted assignee hereunder shall have insurable fee title to the Single Family Site which shall be free and clear of all liens,encumbrances,clouds and conditions,rights of occupancy or possession,except. (1) applicable building and zoning laws and regulations, (2)' the provisions of this Agreement; (3) the provisions of the Agency Grant Deed(Single Family Site), (4) any lien for current taxes and assessments or taxes and assessments accruing subsequent to recordation of the Agency Grant Deed (Single Family Site); 19 32011071481927.9 (5) the Final Subdivision Map; (6) the Reciprocal Easement Agreement; and (7) conditions, covenants,restrictions or easements shown as exceptions in the preliminary title report for the Property approved by O'Brien, which approval shall not be unreasonably withheld. Section 3.7 Condition of Property. (a) In fulfillment of the purposes of Health and Safety Code Section 25359.7(a),the Agency hereby represents-and warrants that it has no knowledge, and has no reasonable cause to believe,that any release of hazardous substances has crime to be located on or beneath the Property, except as disclosed in the Environmental Assessment Documents, copies of which has been delivered to Developers. (b) The Agency and the Developers understand and agree that the Property shall be purchased "as is" by the Developers and that the Agency shall in no way be responsible for demolition, site preparation or any other removal or replacement of improvements thereon. The Developers agree to accept conveyance of the Property in its present condition, "as is" and without representation or warranty from the Agency except as set forth in subsection(a)above, with respect to the condition of the Property including,but not limited to, the condition of the soil,presence of hazardous materials or contaminants, and all other physical characteristics. The Developers have.performed and relies solely upon their own independent investigation concerning the physical condition of the Property or compliance of the Property with any - statutes,ordinances, rules or regulations. (c) If after conveyance of the Property,the conditions of the Property are not in all respects entirely suitable for the use or uses to which the Property will be put as described in this Agreement,then it is the sole responsibility and obligation of the Developers to correct any soil conditions, correct any subsurface condition, correct any structural condition,demolish any improvements and otherwise put the Property in a condition suitable for the Development to be constructed pursuant to this Agreement. The Developers hereby waive any right to seek reimbursement or indemnification from the Agency of the Developers costs related to correction of any physical conditions on the Property except to the extent such costs are related to hazardous materials conditions known to the Agency but not disclosed pursuant to subsection(a) above. Notwithstanding any other provision of this subsection(c), RCD,its successors and assigns shall satisfy the foregoing obligations as they pertain to the Apartment Site, and O'Brien, its successors and assigns shall satisfy the foregoing obligations as they pertain to the Single Family Site. Section 3.8 Costs of Escrow and Closin_. Ad valorem taxes, if any, shall be prorated as of the date of conveyance. All costs of closing the conveyance of the Apartment Site, including but not limited to,the cost of title insurance (including the Agency's lender's policy), transfer tax,Title Company document preparation, recordation fees and the escrow fees of the Title Company shall be paid by RCD. All costs of closing the conveyance of the Single Family 20 3201071161927.9 Site,including but not Bruited to,the cost of title insurance,transfer tax,title company document preparation,recordation fees and the escrow Fees of the Title Company shall be paid by O'Brien. The oasts borne by the Developers are in addition to the Purchase Price for the Property. ARTICLE 44 AGENCY LOAN APARTMENT SITE Section 4.1 Loan. (a) Amount. Subject to the terms and conditions set forth in the Agency Documents executed by RCD,the.Agency hereby agrees to lend, and RCD hereby agrees to borrow Two Million Six Hundred Twenty Two Thousand Four Hundred Sixty Two Dollars ($2,622,462);provided,however,if RCD is successful:in securing HOPWA Funds from the County,the Agency Doan shall be reduced by the amount of the HOWPA Funds provided by the County. (b) Use. RCD shall use the Agency Loan to fund specific predevelopment activities associated with.the Apartment Development(in an amount and for only such limited predevelopment activities as are approved for funding by the Agency Redevelopment Director) and to fund the construction of the Apartment Development, consistent with the Apartment Financing Plan. RCD shall not use the;Agency Loan funds for any other purpose without the .prior written consent of the Agency. _. Section 4.2 - Security for Agocy Loan. (a) Deed of Trust. Following conveyance of the Apartment Site to RCD,the Agency Loan shall be secured by the Agency Deed of Trost. (b) Seam for Predevelooment funds. If RCD requests the Agency to disburse'a portion-of the Agency Loan for predevelopment activities associated with the Apartment Development,RCD hereby. (1) agrees to assign to the Agency its rights and obligations with respect to'work product funded with Agency Loan proceeds, including design and engineering contracts, studies,plans and specifications, and approvals,pursuant to the terms of an assignment agreement, in a form to be provided by the Agency, (the "Assignment of Plans")which shall be executed as a condition to disbursement of funds for predevelopment activities; (2) agrees that upon a Default by RCD or termination of this Agreement,it shall deposit with the Agency and assignn to the Agency for the Agency's use, all contracts, documents,reports, 21 320\07\161927.9 ................ _ . ... ......... _ ...............................................................__. ....................... . surveys,materials, architectural drawings and specifications,and any information related to the Apartment Development. Section 4.3 Conditions Precedent to Disbursement of Agency Loan. The maximum amount of funds to be disbursed to RCD pursuant to this Section 4.2 shall not exceed Two Million Six Hundred Twenty Two Thousand Four Hundred Sixty Two Dollars($2,622,462). The Agency shall not be obligated to make any disbursements of Agency Loan proceeds for predevelopment activities associated with the Apartment Development or for construction of the Apartment Development unless the following conditions precedent are satisfied prior to each such disbursement of the Agency Loan: (a) Disbursement for Predevelopment Activities. (1) RCD has executed and delivered to the Agency the Agency Note and the Assignment of Plans; (2) There exists no Default nor any act, failure, omission or condition that would constitute an event of Default of RCD under this Agreement; and (3) The Agency has received a written draw request from RCD, including certification that the condition set forth in Section - 4.3(a)(2) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Apartment Financing Plan and any Agency approvals related to predevelopment funding,the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. (b) Disbursement for Construction.Activities. (1) The Agency has conveyed the Apartment Site to RCD and the Agency Deed of Trust and Agency Regulatory Agreement have recorded against the Apartment Site; (2) There exists no Default nor any act, failure, omission or condition that would constitute an event of Default of RCD under this Agreement; (3) The Agency has received and approved the general contractor's construction contract that RCD has entered or proposed to enter for construction of the Apartment Improvements as required pursuant to Section 5.4 below, (4) The Agency has received copies of labor and material (payinent) bonds and perforinance bonds frons RCD for the construction of 22 320\07\181927.9 the Apartment Improvements as required pursuant to Section 5.11 below; (5) RCD has closed all acquisition and construction:financing for the Apartment Development; and (6) The Agency has received a written draw request from RCD, including certification that the condition set forth in Section 4.3(b)(2) continues to be satisfied,and setting forth the proposed uses of funds consistent with:the Apartment Financing plan, the amount of funds needed, and,where applicable, a;copy of the bill or invoice covering a cast incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with the Apartment Improvements, the written request must be accompanied by(i)certification by RCD's architect reasonably acceptable to the Agency that the work for which disbursement is requested has been completed(although the Agency reserves the right to inspect the Apartment Development and make an independent evaluation);and(ii)lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the Agency. _. Section 4.4 Renay_ment. (a) - Interest. The Agency Loan shall bear simple interest on all outstanding principal at the rate of three percent(3%)per annum. ( ) Annual Pay .encs. Commencing on May V following completion of the construction of the Apartment Improvements,and on May 1'of each year thereafter for the Tenn of the Agency Lean,RCD'shall make repayments of the outstanding principal and accrued interest on the Agency Loan equal to the Lenders' Share of Residual Receipts. Payments made shall be credited first against accrued interest and then against outstanding principal. Such annual payments shall be accompaniedby RCD's report of Residual Receipts (including an independent auditor's'report regarding the auditor's review of Annual Operating Expenses).-RCD shall provide the Agency with any documentation reasonably requested by the.Agency to substantiate RCD's determination of Residual'Receipts. In the event that the County provides additional funding to RCD for the Apartment Improvements, the Lenders' Share;of Residual Receipts shall be divided between repayment of the Agency, the County and HCD, in proportion to their outstanding loan amounts pursuant to an intercreditor agreement to be entered into by the Agency,the County,and RCD. (c) Pa3nent'in Full. All principal and interest on the Agency,Loan shall be due upon the earliest of. 23 320\07\161527.8 .......................... _ _._. ......... ........._.... ................................................__........___. ..................... . (1) a Transfer of the Apartment Site and/or Apartment Improvements other than a Transfer permitted or approved by the Agency as provided in Article 7; (2) the occurrence of an Event of Default with respect to the Apartment Site for which the Agency exercises its right to cause the Agency Loan indebtedness to become immediately due and payable,or for which the Agency Loan indebtedness is automatically specified to become immediately due and payable pursuant to applicable subsections of Section 8.4 below; or (3) the expiration of the Term. (d) Special Definitions The following special definitions shall apply for purposes of this Section 4.4: (1) "Annual Operating Expenses"with respect to a particular Fiscal Year shall mean the following costs reasonably and actually incurred for operation and maintenance of the Apartment Improvements to the extent that they are consistent with an annual independent audit performed by a certified public accountant using generally accepted accounting principles: property taxes and assessments imposed on the Apartment Site and Apartment Improvements;debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Apartment Improvements)on loans associated with development of the Apartment Improvements and approved by the Agency pursuant to Section 2.6 above;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 Agency;partnership management fees(including any asset management fees)payable to any partner or affiliate of any partner of RCD,if any, not to exceed a total of Twenty-Five Thousand Dollars ($25;000)per year, all as specifically approved in advance and in writing by the Agency at the time the tax credit syndication occurs (only for the fifteen(15)-year compliance period as described in Section 42(1)(1) of the Internal Revenue Code of 1986, as amended);premiums for property damage and liability insurance;utility services not paid for directly by tenants, including water, sewer, and trash collection;maintenance and repair; any annual license or certificate of occupancy fees required for operation of the Development; security services; advertising and marketing; cash deposited into reserves for capital replacements of the Apartment Improvements in an amount not to exceed six tenths of one percent(.6%) of the total development cost of the Apartment Improvements; cash deposited into an 24 320107\161927.9 operating reserve in an amount not to exceed three percent(3%) of Annual Operating Expenses or the amount required in connection with the permanent financing and the Tax Credit Funds,whichever is greater(or any greater amount approved by the Agency)but with the operating reserve capped at six(o)months grass rent from the Apartment Improvements(as such rent may vary from time to time);payment of any previously unpaid portion of the Developer Fee due RCD (without interest)not exceeding a cumulative Developer Fee due RCD in the maximum amount set forth in Section 5.11; extraordinary operating costs specifically approved by the Agency; payments of deductibles in connection with casualty insurance claims not normally paid from reserves,,the amount of uninsured losses actually replaced,repaired or restored, and not normally paid from reserves, and ether ordinary and reasonable operating expenses not listed above. "Annual OperatingExpenses" shall not include the following: depreciation, amortization, depletion or other non-cash expenses; any amount expended from a reserve account; and any capital cost with respect to the Development, as determined by the accountant for the Apartment Development. (2) "Gross Revenue"with respect to.a particular Fiscal.Year shall -- mean all revenue,income,.receipts, and other consideration actually received from operation and leasing of the Apartment_ improvements.' Grtss Revenue shall include,but not be limited to: all rents, fees and charges paid by tenants, Section 8 payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees,price index adjustments and any other rental adjustments to leases or rental agreements; net proceeds from vending and laundry roam machines;the proceeds of business interruption or similar insurance and not paid to senior lenders; the proceeds of casualty insurance not used to rebuild the Apartment Improvements and not paid to senior lenders; and condemnation awards for a taking of part of all of the Apartment Site and/or Apartment'Improvements for a temporary period. Gross Revenue shall not include tenants' security deposits,loan proceeds, capital contributions or similar advances. (3) "Lenders' Share of Residual Receipts" shall mean seventy-five percent(75%)of the Residual Receipts from the Apartment Development,to be divided among all lenders providing Residual Receipts loans to RCD pursuant to the Apartment Financing Plan. 25 3201071161927,9 (4) "Residual Receipts " in a particular Fiscal Year shall mean the amount by which Gross Revenue(as defined below) exceeds Annual Operating Expenses(as defined below). Section 4.5 Prepayment. RCD may pay the principal and any interest due on the Agency Loan in advance of the time for payment thereof as provided in this Agreement,without penalty,provided,however,that RCD acknowledges that the provisions of this Agreement and the Regulatory Agreement will be applicable to the Apartment Site and Apartment Improvements even through the Developer may have prepaid the Agency Loan. Section 4.6 Assumption. Except as provided in the following sentence,the Agency Note shall not be assumable by successors and assigns of RCD without the prior written consent of the Agency, which consent shall be granted or denied in the Agency's sole discretion. The Agency Note shall be assumable by a nonprofit public benefit corporation controlled by RCD in connection with a Transfer described in Section 7.4(c)or by the Partnership in connection with a Transfer described in and approved by the Agency pursuant to Section 7.4(d),provided that the entity assuming the Agency Note executes and records in the Records of the County of Contra Costa such instrument(s)as the Agency deems necessary or appropriate to evidence such assumption. Section 4.7 Subordination of Agency Deed of Trust. The Agency agrees to subordinate the Agency Deed of Trust to the lien for the deed(s)of trust securing construction or permanent financing approved by the Agency pursuant to Section 2.6, exceptthat-the Agency - Deed of Trust shall be in co-equal-lien position with the deeds of trust securing the County Funds. The Agency agrees to execute such documents as are-re aonably required by the holder of a Security Financing Interest to effectuate such subordination. Section 4.8 Subordination of Regulatory Agreement. The Agency agrees to subordinate the Regulatory Agreement to the lien of deed(s)of trust securing construction or pennanent financing approved by the Agency pursuant to Section 2.6 and to the regulatory agreements(s)recorded in connection with such financing and/or the Tax Credit Funds upon satisfaction of the requirements of,and to the extent permitted by, California Health and Safety Code Section 33334.14(x). The Agency agrees to execute such documents as are reasonably required by the holder of a Security Financing Interest to effectuate such subordination. ARTICLE 5 CONSTRUCTION OF IMPROVEMENTS Section 5.1 Construction Pursuant to Plans. Unless modified by operation of Section 5.3,the Development shall be constructed substantially in accordance with the Construction Plans approved by the Agency pursuant to Section 2.9 and the terms and conditions of the County's,land use permits and approvals and building permits,including any variances granted. Notwithstanding anything to the contrary contained herein, and except as otherwise provided in the Inrastivcture Agreement, RCD, its successors and assigns shall satisfy the following obligations in this Article 5 only to the extent they pertain to the Apartment Site, and O'Brien, its 26 320\07\161927.9 successors and assigns shall satisfy the following obligations in this Article 5 only to the extent they pertain to the Single Family Site, and neither Developer shall be responsible for such obligations to the extent such obligations pertain to the other Developer's portion of the Development. Section 5.2 Infrastructure Improvements. (a) Construction of Infrastructure Improvements. The Developers shall construct the Infrastructure Improvements on the Property as detailed in Exhibit K as well as any other infrastructure required in the County conditions of approval for the Development. Upon completion of construction of the Infrastructure Improvements,the Developers shall dedicate the Infrastructure Improvements and underlying portions of the Property to the County pursuant to the County conditions of approval for the Development. (b) Infrastructure Agreement. Each Developer shall be responsible for payment of a portion of cost of construction of the Infrastructure Improvements and related fees. The percentage of such costs paid by RCD shall not exceed the percentage of the number of units in the Apartment Development as compared to the total number of units in the Development. RCD and O`Brien shall enter into an agreement(the"Infrastructure Agreement") setting forth a schedule for construction of the Infrastructure hnprovements, and RCD's and O'Brien's agreement as to the division of responsibility and cast for the construction of the Infrastructure improvements, consistent with the terms of this Agreement. The Infrastructure Agreement shall-provide that.whichever Developer is the first to begin construction on its portion of the Development shall either agree to be responsible for the construction of all the Infrastructure Improvements or provide evidence satisfactory to the Agency that-all the Inffastructure Improvements shall be constructed regardless of the ability of the other Developer to commence construction on its portion'ofthe Development. The Agency shall be a third party beneficiary to the Infrastructure Agreement with full rights to enforce all provisions of the Infrastructure Agreement. The Infrastructure Agreement shall be subject to the approval of the Agency,which approval shall not be unreasonably withheld. Upon execution of the Infrastructure Agreement in the farm approved by the Agency,the Agency shall permit the conveyance of the Apartment Site to RCD prior to the satisfaction by O'Brien of the conditions set forth in Article 2 and Section 3.5 related to the Single Family Site, and shall permit the conveyance of the Single Family Site to O'Brien prier to the satisfaction by RCD of the conditions set forth in Article 2 and Section 3.4 related to the Apartment Site. Following the first of such independent conveyances, and as further set forth in Section 8.11, a default by RCD or default related to the Apartment Development shall entitle the Agency to exercise its remedies under Article 8 with respect only to RCD and the Apartment Development and default by O'Brien or default related to the Single Family Development shall entitle the Agency to exercise its remedies under Article'8 with respect only to O'Brien and.the Single Family Development. (c)" Agency Infrastructure Assistance. The Agency shall provide RCD the Agency Infrastructure Assistance in the amount of Five Hundred Seventy Thousand Six.Hundred Forty Nine Dollars($574,649)to pay for a portion of the cost of construction of the 27 320\07\161527,9 Infrastructure Improvements that are required to be constructed by the County as a condition of approval of the Apartment Development and are designated RCD's responsibility in the Infrastructure Agreement. The Agency Infrastructure Assistance shall be in the form of a grant to RCD. The Agency shall disburse the Agency Infrastructure Assistance to RCD only upon receipt of a written draw request from RCD, setting forth the proposed uses of funds,the amount of ftmds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. Section 5.3 Change in Construction of Development/Construction Pursuant to Laws. (a) Developers shall notify the Agency in a timely manner of any changes in the work required to be performed under this Agreement,including any additions, changes, or deletions to the plans and specifications approved by the Agency. A written change order authorized by the Agency must be obtained before any of the following changes, additions, or deletions in work for the Apartment Development may be performed: (1) any change in the work the cost of which exceeds Fifteen Thousand Dollars($15,000)for the Apartment Development;or(2) any set of changes in the work the cost of which cumulatively exceeds Fifty Thousand Dollars ($50,000) for the Apartment Development; or(3)any material change in building materials or equipment, specifications,or the structural or architectural design or appearance of the Apartment Development as provided for in the pians and specifications approved by the Agency. The Agency shall use best efforts to review change orders within five (5)working days of receipt from RCD. Consent to any additions,changes,or deletions to the work shall not relieve or release.RCD from any other obligations under this Agreement,or relieve or release RCD or its sureties from any surety bond. (b) Developers shall cause all work performed in connection with the Development to be performed in compliance with(i)all applicable laws, ordinances,rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter, including(without limitation and where applicable)the prevailing wage provisions set forth in Section 5.8 below, and(ii)all directions,rules and regulations of any fire marshal,health officer,building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. Each element of the work shall proceed only after procurement of each permit,license, or other authorization that may be required for such element by any governmental agency having jurisdiction, and Developers shall be responsible to the Agency for the procurement and maintenance thereof, as may be required of Developers and all entities engaged in work on the Development. Notwithstanding any other provision of this subsection(b),RCD,its successors and assigns shall satisfy the foregoing obligations as they pertain to the Apartment Site, and O'Brien., its successors and assigns shall satisfy the foregoing obligations as they pertain to the Single Family Site. Section 5.4 Construction Contracts. By not later than fifteen(15)days prior to the proposed commencement of construction of the Development,the Developers shall submit to the Agency for its limited approval the proposed construction contracts for the Apartment Improvements and the Single Family Improvements. The Agency's review and approval shall be limited exclusively to a determination whether(a)the guaranteed maximum construction cost set forth in the construction contracts are consistent with the approved Financing Plans,(b)the 28 320\07\161927.9 construction contracts are with contractors approved by the Agency, and(c)the construction contracts contain provisions consistent with Sections 5.7,5.8 and 5.9. The Agency's approval of the construction contracts shall in no way be deemed to constitute approval of or concurrence with any other terra or condition of the construction contracts. Upon receipt by the Agency of the proposed construction contracts,the:Agency,shall promptly review same and approve it within five(5)business days if it satisfiesthe limited criteria set forth above. If the construction contracts are not approved by the Agency,the Agency shall set forth in writing and notify the Developers of the Agency's reasons for withholding such.approval. The Developers shall thereafter submit revised construction contracts for Agency approval,which approval shall be granted or denied in five(5)business days in accordance withh the criteria and procedures set forth above. Failure of the Agency to respond to the Developers request for approval within five(5)business days shall be deemed approval. Section 5:5 Commencement of Construction. 'RCD shall'camunence construction of the Apartment Irnprvvern.ents within thirty(30)days following conveyance to RCD by the Agency of the.Apartment Site. O'Brien shall commence construction of the Single Family Improvements within sixty(60)days following conveyance to O'Brien by the Agency of the Single Fancily Site. Subject to Section 8.11 below,failure by the Developers t6 commence constructionn of the Apartment Improvements and the Single Family Improvements within such time periods shall constitute an Event of Default within the meaning and with the effect set forth in Section 8:4 _ Section 5.6 Completion-of the Improvements. (a) RCD shall diligently prosecute to completion the construction of the Apartment Improvements (sufficient to obtain approval for occupancy of the Apartment Improvements from the County)within eighteen(18)months following commencement of construction of the Apartment Improvements. (b) O'Brien shall diligently prosecute to completion the construction of the Single Family Improvements(sufficient to obtain approval for occupancy for the Single Family Improvements from the County)by May 1'5 2006. Section 5.7 Equal fl,npportunity. During the construction of the Development there shall be no discrimination on the basis of race, color, creed,religion, sex, sexual.orientation, marital status,national origin or ancestry in the hiring, tiring,promoting or demoting of any person engaged in the construction work. To the extent practicable,preference for employment shall be given to persons residing'within the Project Area pursuant to the terms of a first source agreement to be executed'by the Developer in a form to be provided by the Agency. Section 5.8 Prevailing Wa e-RRequirement.' The Developers shall and shall cause all contractors and subcontractors to pay prevailing wages in the construction of the Development as those wages are determined pursuant to Labor Code'Sections 1720 et M.and implementing regulations of the Department of Industrial Relations and comply with the other applicable 29 320\07\161927.9 ........................... .................... ........................ ........................... provisions of Labor Code Sections 1720 et seg. and implementing regulations of the Department of Industrial Relations. The Developers shall and shall cause the contractors and subcontractors to keep and retain such records as are necessary to determine if such prevailing wages have been paid as required pursuant to Labor Code Sections 1720 et s M. During the construction of the Development, the Developers shall or shall cause the contractor to post at the Property the applicable prevailing rates of per them wages. The Developers shall indemnify,hold harmless and defend(with counsel reasonably acceptable to the Agency)the Agency against any claim for damages, compensation, fines,penalties or other amounts arising out of the failure or alleged failure of any person or entity(including Developers,their contractors and subcontractors)to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et M. and implementing regulation or comply With the other applicable provisions of Labor Code Sections 1720 et M. and implementing regulations of the Department of Industrial Relations in connection with construction of the Improvements or any other work undertaken or in connection with the Property. Developers' obligation to indemnify under this Section 5.8 shall be interpreted broadly to apply to any legal or administrative proceeding, arbitration, or enforcement action. In meeting these requirements,the Developers shall comply with the provisions of Agency Resolution 88-9 setting forth the Agency's local policy regarding the payment of prevailing wages in connection with Agency-assisted developments,which is attached hereto as Exhibit J. Notwithstanding any other provision of this section, RCD,its successors and assigns shall satisfy the foregoing obligations as they pertain to the Apartment Site, and O'Brien,its successors and assigns shall satisfy the foregoing obligations as they pertain to the Single Family Site. Section 5z9 Small Business Enterprise Policy. The Developers will use their best efforts to afford minority-owned and women-owned business enterprises the maximum practicable-opportunity to participate in the construction of the Development. The Developers shall, at a minimum,notify applicable minority-owned and women-owned business firms4ocated in Contra Costa County of bid opportunities for the construction of the Development. A listing of minority-owned and women-owned businesses located in the County and neighboring counties is available from the County of Contra Costa. Section 5.10 Certificates of Completion. Promptly after completion of the Apartment Improvements in accordance with those provisions of this Agreement relating solely to the obligations of RCD to construct the Apartment Improvements (including the dates for beginning, and completion-thereof, as they may have been extended by the Agency),the Agency will provide a Certificate of Completion so certifying, in substantially the form shown in Exhibit L attached hereto and incorporated herein. Promptly after completion of each of the units included within the Single Family Improvements,in accordance with those provisions of this Agreement relating solely to the obligations of O'Brien to construct the Single Family Improvements (including the dates for beginning and completion thereof, as they may have been extended by the Agency),the Agency will provide a Certificate of Completion so certifying. Such Certificates of Completion shall be conclusive evidence that the covenants in this Agreement with respect to the obligations of each of the Developers to construct the portions of the Development described in such certificates and the dates for the beginning and completion thereof have been met; provided,however,such certifications shall not be conclusive evidence regarding Developer's satisfaction of the prevailing wage requirements of Section 5.8 above. Such certifications shall be in such form as will enable them to be recorded among the official 30 3201071161927.9 ............... ....... ............1---.111111111111-....... records ofContra'Costa County. Such certifications and determinations shall not constitute evidence of compliance with or satisfaction of any obligation of the Developers to any holder of a deed of trust securing money loaned to finance the Development or any part thereof and shall not be deemed a notice of completion under the California Civil Code. Section 5.11 Construction Completion Guarantees. 'Prior to commencement of construction of the Development, each of the Developers shall deliver to the Agency labor and material bands and performance bonds for the Apartment Improvements and the Single Family Improvements. Any such bunds shall name the Agency as co-obligee. In lieu of such bonds, the Developers may submit such other guarantees satisfactory to the Agency including but not limited to<a completion`guarantee in a form and from a guarantor reasonably acceptable to the Agency. Section 5.12 RCD Develgper Fee. The amount and the terms of the Agency Infrastructure Assistance and Agency Loan have been established by taking into'account the anticipated casts of development,including a maximum Developer Fee to be paid to RCD for development and construction management services. In this regard,RCD shall be entitled to a Developer Fee in an amount not exceeding Sias Hundred Seven Thousand Five Hundred Dollars ($607,500),subject to increase in the reasonable'discretion of the agency upon receipt of evidence from RCD that such increase is consistent with the approved funding of the Apartment Improvements. Except for the Developer Fee no compensation from any source shall be received by or payable to RCD or any Affiliate(as defined below)of RCD in connection with the provision of development and construction management services"for the acquisition and construction of the Apartment Development. The prohibition set forth in the preceding sentence shall not apply to receipt by RCD of a partnership management*fee or asset management fee, which fees are deemed to constitute an Annual Operating Expense and not a cost o development. RCD agrees that its Developer Fee shall be utilized to pay costs associated with the Apartment Development,including but not limited to meeting capital contribution, capitalization and guaranty requirements'associated with the low income housing tax credit syndication, and administrative costs of RCD. For purposes of this Section 5.11; "Affiliate" shall mean an entity with at least five percent(5%)common ownership or common control as RCD. Section 5.13 Mana2em nt AgreementlMarketing_Plan. The John Stewart Company is hereby approved as the initial Management Agent for the Apartment Improvements. By no later than one hundred twenty(120)days following commencement of construction of the Single Family Improvements,{'Brien shall submit to the Agency, a marketing plan for the sale of the Single Family Improvements,and RCD shall provide to the Agency a proposed management agreement, a marketing plan:for the rental of the Apartment Improvements,written guidelines or procedures for tenant selection for the Apartment Improvements,written procedures for implementation of the income certification and reporting requirements of the Regulatory Agreement,and a proposed plan for operation and management of the Apartment Improvements. The marketing plans,written guidelines and procedures shall be either approved or disapproved by the.Agency within thirty(30)days of their receipt by the Agency. Any written disapproval shall specify the reasons for such disapproval.' The Developers'shall thereafter submit revised marketing plans, guidelines,and procedures to the Agency, and the same procedures for approval 31 320\07\161927.9 .................. ........................ ..................... or disapproval shall apply to the revised guidelines and procedures as set forth above for the original submission. ARTICLE 6 ONGOING DEVELOPER OBLIGATIONS Section 6.1 Applicability. The conditions and obligations set forth in this Article 6 shall apply after conveyance of the Property to Developers throughout the Tenn,unless a different period of applicability is specified for a particular condition or obligation. Notwithstanding anything to the contrary contained herein, RCD,its successors and assigns shall satisfy the following obligations in this Article 6.only to the extent they pertain to the Apartment Site, and O'Brien, its successors and assigns shall satisfy the following obligations in this Article 6 only to the extent they pertain to the Single Family Site, and neither Developer shall be responsible for such obligations to the extent such obligations pertain to the other Developer's portion of the Development. Section 6.2 Use, The Developers hereby agree that, for the entire Term,the Development will be used only for residential use consistent with the Agency Documents, the Final Development Plans and the Approved Construction Plans. Section 6.3 Maintenance. The Developers hereby agree that,prior to completion of the Development, the portions of the Property undergoing construction shall be maintained in.a neat and orderly condition to the extent practicable anti in accordance with industry health and safety standards, and that, once the D.eVelopment is completed,the Development shall be well maintained by the Developers as to both external and internal appearance of the units, the common areas, and the open spaces. The Developers shall maintain the Development in good repair and working order, and in a neat,clean and orderly condition, including the walkways, driveways, alleyways and landscaping,and from time to time make all necessary and proper repairs,renewals, and replacements. In the,event that there arises at any time prior to the expiration of the Term a condition in contravention of the above maintenance standard,then the Agency shall notify the Devielopers in writing of such condition, giving the Developers thirty(30)days from receipt of such notice to cure said condition. In the event the Developers fail to cure or commence to cure the condition within the time allowed,the Agency shall have the right to perform all acts necessary to cure such a condition, or to take other recourse at law or equity the Agency may then have and to receive fi-om the Developers, the Agency's cost in taking such action. The patties hereto further mutually understand and agree that the rights conferred upon the Agency expressly include the light to enforce or establish a lien or other encumbrance against the Property,but such lien shall be subject to previously recorded liens and encumbrances. The foregoing provisions shall be a covenant running with the land until expiration of the Tenn, enforceable by the Agency, its successors and assigns. Nothing in the foregoing provisions shall preclude the Developers from making any alterations, additions, or other changes to the Development,provided that such changes comply with this Agreement and the Final Development Plans, and with all necessary land use,building permits, and other approvals from the County. 32 3201071161927.9 ................................ --------- The previsionsof this'Section 6.3 shall apply separately to each of the Apartment Development and the Single Family Development so that failure by RCD,its successors and assigns,to maintain,the Apartment Development in accordance with the standards set forth in this Section 6.3 shall give rise to Agency remedies under this'Section 6.3 only with respect to RCD, its successors and assigns, and the Apartment Development; and failure by O'Brien, its successors and assigns to maintain the Single Family Development in accordance with this Section 6.3 shall give rise to Agency remedies under this Section 6.3 only with respect to O'Brien, its successors and assigns,and the Single Family Development. Following conveyance by O'Brien of each single family unit to a homebuyer, O'Brien shall'be released from any obligations under this Section 6.3 for each such single family unit conveyed;provided,however, that the obligations under this Section 6.3 shall run with Property and shall bind.O'Br en's successors and assigns including,without limitation,the Single Family Improvements homeowners as to each such homeowner's home and any homeowners' association. Section 6.4 Property Tax Exemption. 'RCD and its successors and assigns hereunder shall not apply for a property tax exemption for the Apartment Development without the prior written consent of the,Agency,which consent shall not be unreasonably withheld upon a showing by RCD that such exemption is necessary for the economic feasibility of the Apartment Development. In the event the Agency grants written:consent to an,application for a property tax exemption for the Apartment'Development,RCD shall not apply for a property tax exemption for the Apartment Development under any provision of law other than Revenue and Taxation Code Section 214(g). Section-6.5 Taxes and Assessments. The Developers shall pay all real and personal property takes,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 line or charge from attaching to the Property;provided,however,that the Developers shall have the right to contest in good faith, any such taxes, assessments,or charges.. In the event the Developers exercise their right to contest any tax, assessment,or charge against thorn,the Developers,on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered, against them,together with all costs, charges and interest. Following conveyance by O'Brien of each single'family unit to a homebuyer, O'Brien shall be released from any obligations under this Section 65 fro each such single family unit conveyed,provided,however,that the obligations under this Section 6.5 shall run with the Property and shall bind O'Briens successors and assigns including,without limitation, the Single Family Improvements homeowners as to each such homeowner's home and any homeowners' association. Section 6.6 MandatM Language in All Subse uent Deeds Leases and Contracts. (a) Basic c Requirement. The Developers covenant by and for themselves,their successors and assigns>that there shall be no discrimination against or segregation of a'person or of a group of persons on account of race,color,creed,religion, sex, sexual orientation,>marital status,national'origin,'ancestry or disability in the sale,lease, sublease transfer,use, occupancy, tenure or enjoyment of the Development nor shall the Developers or any person clahning under 33 320107\151927.9 ................. ......................- ................ or through the Developers establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Development. The foregoing covenant shall run with the land. Following conveyance by O'Brien of each single family unit to a homebuyer, O'Brien shall be released from any obligations under this Section 6.6 with respect to such unit; provided,however,that the obligations under this Section 6.6 shall run with the Property and shall bind O'Brien!s successors and assigns, including,without limitation,the Single Family Improvement homeowners and any homeowners' association. (b) Provisions In Conveyance Documents. All deeds,leases or contracts made or entered into by Developers,their successors or assigns,as to any portion of the Property shall contain therein the following language: (1) In Deeds: "Grantee herein covenants by and for itself,its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on account of race,color, creed,religion, sex, sexual orientation,marital status,national origin, ancestry or disability in the sale,lease, sublease,transfer,use, occupancy,tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection,location,number,use or occupancy of tenants, lessees,_subtenants, sfiblessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land." (2) In Leases: "The lessee herein covenants by and for the lessee and lessee's heirs,personal representatives and assigns and all persons claiming under the lessee or through the lessee that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed,religion, sex, sexual orientation,marital status,national origin, ancestry or disability in the leasing, subleasing, transferring,use, occupancy,tenure or enjoyment of the land herein leased nor shall the lessee or any person claiming under or through the lessee establish or pen-nit any such practice or practices of discrimination or segregation with reference to the selection, location,number, use or occupancy of tenants,lessees, sublessees, subtenants,or vendees in the land herein leased." (3) In Contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed,religion, sex, sexual orientation,marital status, national origin or ancestry or disability in the sale,lease,sublease, transfer,use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or pen-nit any such practice or practices 34 320\07\161927.9 ......................... ........................ .......... of discrimination or segregation with reference to the selection,location,number,use or occupancy of tenants,lessees, subtenants, sublessees or vendees of the land." Section 6.7 Hazardous Materials. (a) Certain Covenants and Agreements. Subject to the division of liability between the Developers set forth in the last sentence of this subsection 6.7(a),the Developers hereby covenant and agree that. (l) The Developers shall not knowingly permit the Development or any portion thereof to be a site for the use,generation,treatment,manufacture, storage, disposal or transportation of Hazardous Materials or otherwise Knowingly permit the presence of Hazardous Materialsin,on or under the Development. (2) The Developers shall keep and maintain.the Development and each portion thereof in compliance with,and shall not cause or permit the Development or any portion thereof to be in violation of, any Hazardous Materials Laws. Following:conveyance by O'Brien of each single family unit to a homebuyer,O'Brien shall be released from any obligations under this Section 6.7(x)(2)with respect to each such unit conveyed, provided,however, that the obligations under this Section 6.7(a)(2) shall run with the Property and shall bind UBri&s successors and assigns,including,without limitation,the Single Family Improvement homeowners and any homeowner's association. (3) Upon receiving actual knowledge of the sane the Developers shall immediately advise the Agency in writing of- (A)-any and all enforcement,cleanup,removal or other governmental or regulatory actions instituted,completed or threatened against the Developers or the Development pursuant to any applicable Hazardous Materials Laws; (B) any and all claims made or threatened by any third party against the Developers or the Development relating to damage,contribution, cost recovery, compensation,lass or injury resulting from any Hazardous Materials(the matters set forth in the foregoing clause(A) and this clause(B) are hereinafter referred to as "Hazardous Materials Claims"); (C)the presence of any Hazardous Materials in, on or under the Development; or(D) the Developerst discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Development classified as "borderzone property" under the provisions of California Health and Safety Code, Sections 25220 eta., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership,occupancy,transferability or use of the Development under any Hazardous Materials Laws. The Agency shall have the right to join and participate 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 attorney's fees in connection therewith paid by the Developer owning such portion of the Property;provided,however,if O'Brien assumes sole liability for any such Hazardous Materials Claims,the Agency shall not have the right to have its attorneys' fees paid by O'Brien.Following conveyance by O'Brien of each single family unit to a homebuyer, O'Brien shall be released from any obligations under this Section 63(a)(3)with respect to each such unit conveyed.. 35 3201071161927.9 (4) Without the Agency's prior written consent,which shall not be unreasonably withheld, and which the Agency shall promptly grant or deny,the Developers shall not take any remedial action in response to the presence of any Hazardous Materials on, under, or about the Development(other than in emergency situations or as required by governmental agencies having jurisdiction in which case the Agency agrees to provide its consent),nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Materials Claims. Notwithstanding any other provision of this subsection(a),RCD,its successors and assigns makes the foregoing Hazardous Materials covenants with respect to the Apartment Site and Apartment Improvements, and O'Brien,its successors and assigns makes the foregoing Hazardous Materials covenants with respect to the Single Family Site and Single Family Improvements. Neither Developer shall be liable for the failure of the other Developer to perform its obligations under this Section. (b) Indemnity. Without limiting the generality of the indemnification set forth in Section 10.7 below, and subject to the division of liability between the Developers set forth in the last sentence of this subsection(b),the Developers hereby agree to indemnify,protect,hold harmless and defend(by counsel reasonably satisfactory to the Agency)the Agency, its boardmembers,officers, and employees from and against any and all claims,losses,damages, liabilities, fines,penalties, charges, administrative and judicial proceedings and orders, judgments,remedial action requirements, enforcement actions of any kind,and all costs and expenses incurred in connection,therewith(including,but not limited to, attorney's fees and expenses),arising directly or indirectly,-in whole or in part,out of. (1) the failure of the _ Developers,or any of them.,or any other person or entity to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment,presence,removal, storage,decontamination, cleanup,transportation or disposal of Hazardous Materials into,on, under or from the Development; (2)the presence in,on or under the Development of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on,under or from the Development; or (3) any activity carried on or undertaken on or off the Development, subsequent to the conveyance of the Property to the Developers, and whether by the Developers or any successor in title or any employees,agents,contractors or subcontractors of the Developer or any successor in title, or.any third persons at any time occupying or present on the Development, in connection with the handling,treatment,removal, storage,decontamination, cleanup,transport or disposal of any Hazardous Materials at any time located or present on or under the Development;provided,however, that the indemnification for activities undertaken off the Development shall only apply to activities undertaken by the Developers or their employees, agents, contractors or subcontractors.. The foregoing indemnity shall further apply to any residual contamination on or under the Development,or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use,handling, treatment, storage,transport or disposal of any such Hazardous Materials, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. The provisions of this subsection shall survive expiration of the Tenn or other termination of this Agreement, and shall remain in full force and effect; provided, however, following conveyance by O'Brien of each single family unit to a homebuyer, O'Brien shall be released from any obligations under Section 6.7(b)(3)with respect to each such single 36 3201071161927.9 family unit conveyed. Notwithstanding any other provision of this subsection(b),RCD,its successors and assigns shall provide the foregoing indemnity to the Agency only with respect to Hazardous Materials Claimsarising on or in the Apartment'Site and Apartment Improvements and O'Brien,its successors and assigns shall provide the foregoing indemnity to the Agency only with respect to Hazardous Materials Claims arising on or in the Single Family Site and Single Family.improvements. (c) No Limitation. The Developers hereby acknowledge and agree that the Developers'duties, obligations and liabilities under this Agreement, including,without limitations under subsection(b) above, are in no way limited or otherwise affected by any information the Agency may have concerning the Development and/or the presence within the Development of any Hazardous Materials,whether the Agency obtained such information from the Developers or from its Lawn investigations,unless such information was known to the Agency at the time of execution ofthis Agreement but not disclosed'pursuant to Section 3.7(a)above. Section 6.8 Insurance Requirements. (a) Required Cgyerafe. Subject to subsection 6.5(e)below,each of the Developers,or their successor and assigns to the Property pursuant to this Agreement, shall maintain and Keep in farce,at the Developers' (or their successors')sole cost and expense,the following insurance applicable to the Apartment Development and the Single Family Development,respectively. (1) -Worker's Compensation insurance, including Employer's Liability coverages with:limits not less than One Million Dollars($1,000,000)each accident, to the extent required by law. (2) Comprehensive General Liability insurance with limits not less than Two Million Dollars ($2,000,000)each occurrence combined single limit for Beadily Injury and Property Damage including coverages for Contractual Liability,Personal Injury,Broadfonn Property Damage, Products and Completed Operations. (3) - Comprehensive Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000)each occurrence combined single limit for Bodily Injury and Property:carnage, including coverages for owned,non-owned and hired vehicles,as applicable;provided,however,that if the Developers dei not own or lease vehicles for purposes of this Agreement,then no automobile insurance shall be required and the parties to this Agreement shall initial this provision signifying same. (4) Property insurance covering the Development covering all risks of loss, including earthquake (but only if it is commercially affordable at a reasonable price and with a reasonable deductible)and flood (if required), for one hundred percent(100%) of the replacement value,with deductible, if any, acceptable to the Agency,naming the Agency as a Loss Payee, as its interest may appear. 37 320\07\161927.9 (b) Contractor's Insurance. Each of the Developers shall cause any general contractor or agent working on the Apartment hnprovements or Single Family Improvements, as applicable,under direct contract with either of the Developers to maintain insurance of the types and in at least the minimum amounts described in subsections(a)(1), (a)(2), and(a)(3)above, and shall require that such insurance shall meet all of the general requirements of subsection(c) below. Subcontractors working on the Development under indirect contract with the Developers shall be required to maintain the insurance described in subsections(a)(1), (a)(2) and(a)(3) above, except that the Comprehensive General Liability insurance limits shall not be less than One Million Dollars($1,000,000)each occurrence combined single limit. Liability and Comprehensive Automobile Liability insurance to be maintained by such contractors and agents pursuant to this subsection shall name as additional insureds the Agency, its boardmeinbers, officers,agents, and,employees. (c) General Requirements. The required insurance shall be provided under an occurrence form, and the Developers shall maintain such coverage 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 shall be three times the occurrence limits specified above. Comprehensive General Liability, Comprehensive Automobile Liability and Property insurance policies shall be endorsed to name as additional insureds the Agency and its boardmembers, officers, agents;and employees. - All policies and bonds shall be endorsed to provide thirty(30)days prior written notice of cancellation,reduction in coverage, or intent not to renew to the address established for notices to the Agency pursuant to Section 10.1 below. (d) Certificates of Insurance. Upon the Agency's request at any time during the term of this Agreement,the Developers shall provide certificates of insurance, in form and with insurers reasonable acceptable to the Agency,evidencing compliance with the requirements of this Section, and shall provide complete copies of such insurance policies,including a separate endorsement naming the Agency as additional insured. (e) Homeowners Requirements. Following conveyance by O'Brien of each single family unit to a homebuyer, O'Brien shall be released from the obligations of this Section 6.8 with respect to such unit and such obligations shall not be transferred to the individual purchasers of the single family units. ARTICLE 7 ASSIGNMENT AND TRANSFERS Section 7.1 Definitions. As used in this Article 7,the term "Transfer" means: 38 3201071161927.9 (a) Any total or partial sale,assignment or conveyance, or any trust or power, or any transfer in any other mode or form,of or with respect to this Agreement or of the Development or any part thereof or any interest therein or any contract or agreement to do any of the same; or (b) Any total or partial sale,assignunent or conveyance, or any trust lir power, or any transfer in any ether mode or form,,of or with respect to any ownership interest in Developers or any contract or agreement to do any of the same;or (c) Any merger, consolidation,sale or lease of all or substantially all of the assets of either of the Developers; or (d) The leasing of part or all of the Property or the improvements thereon; provided,however,that leases of the units included within the Apartment Improvements to tenant occupants shall not be deemed a"Transfer" for purposes of this Article 7. Section 7.2 Purpose of Restrictions on Transfer. This Agreement is entered into solely for the purpose of development and operation of the Development and its subsequent use in accordance with the terms hereof. The Developer recognizes that the qualifications and identity of Developer are of particular concern to the Agency,in view of- (a) f(a) The importance of the redevelopment of the Property to the general welfare of the community; and (b) The land acquisition assistance and other public aids that have been made available by law and by the government for the purpose of making such-redevelopment possible; and (c) The reliance by the Agency upon the unique qualifications and ability of the Developers to serve as the catalyst for development of the Property and upon the continuing interest which the Developers will have in the Property to assure the quality of the use,operation and maintenance deemed critical by the Agency in the development of the Property;and (d) The fact that a change in ownership or control of the owner of the Property,or of a substantial part thereof,or any other act or transaction involving or resulting in a significant change in ownership or with respect to the identity of the parties in control of the Developer or the degree thereof is for practical purposes a transfer or disposition of the Property; and (e) The fact that the Property is not to be acquired or used for speculation,but only for development and operation by the Developers in accordance with the Agreement,and (f) The importance to the Agency and the community of the standards of use, operation and maintenance of the Property. The Developers further recognize that it is because of such qualifications and identity that the Agency is entering into this Agreement with the Developers and that Transfers are perndtted only as provided in this Agreement. 39 320MM 651927.9 .............................. ....................................... ..................-... ............................. Section 7.3 Prohibited Transfers. With respect to the Apartment Development,the limitations on Transfers set forth in this Section shall apply throughout the Term. With respect to the Single Family Development, following conveyance of each single family unit,to a homebuyer, O'Brien shall be released from the limitations on Transfers set forth in this Section with respect to each such single family unit conveyed. Except as expressly permitted in this Agreement,the Developers represent and agree that the Developers have not made or created, and will not make or create or suffer to be made or created, any Transfer, either voluntarily or by operation of law without the prior written approval of the Agency. Any Transfer made in contravention of this Section 7.3 shall be void and shall be deemed to be a default under this Agreement whether or not the Developers knew of or participated in such Transfer. Section 7.4 Permitted Transfers, Notwithstanding the provisions of Section 7.3, the following Transfers shall be permitted and are hereby approved by the Agency, subject to satisfaction of the requirements of Section 7.5: (a) Any Transfer creating a Security Financing Interest permitted pursuant to the approved Financing Plans. (b) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest or as otherwise permitted under Article 9. (c) Any Transfer of the Apartment Development to a nonprofit public benefit corporation recognized by the Internal Revenue Service to be an exempt organization pursuant to Section 501(c)(3)of the Internal Revenue Code of 1986, and controlled by RCD;provided that prior to the Transfer RCD provides to the Agency the articles of incorporation and bylaws of such corporation and other documentation establishing to the Agency's reasonable satisfaction that such transferee.is controlled by RCD. (d) Any Transfer of the Apartment Development and assigm-nent of the Loan Documents to the Partnership, the general partner of which is RCD or a nonprofit public benefit corporation controlled by RCD in connection with the syndicating the low income housing tax credits that will be generated by the Development;provided that prior to the Transfer and assigm-nent,(1) all documents associated with the low income housing tax credit syndication of the Project including the Partnership Agreement are submitted to the County for approval prior to execution, which approval shall not be unreasonably withheld; (2) and the Partnership Agreement and/or the instrument of Transfer provides for development and operation of the Apartment Site and Apartment Improvements in a manner consistent with the approved Apartment Financing Plan and the provisions of Article 4 regarding the amount and repayment of the Agency Loan; and(3) the Partnership expressly assumes the obligations of RCD under the Loan Documents,utilizing a form of assigm-nent and assumption agreement to be provided by the County. The Agency's review and approval of the Partnership Agreement shall be limited to 40 320\07\161927.9 .............. ............ ...... a determinationof whether it complies with the other provisions of this Agreement,including, without limitation the requirements of Sections 4.4,5.12,6.8, 7.4, 7.5 and 7.6 hereof. (e)' Any Transfer of a unit included in the Single Family Improvements to an individual'owner-occupant homebuyer(which shall include Transfer of a unit to the occupant adult child, or household thereof, of a parent purchasing or assisting in purchasing a single family unit), and which shall'be evidenced by the statement under penalty of perjury,from the homebuyer,that he or she intends to be an owner occupant. (f) Any Transfer solely and directly resulting from the death,incapacity,or divorce of an individual. (g) Any Transfer to a revocable trust. (h) Any"Transfer of the Single Family Development to an affiliate of O'Brien controlled by those persons or entities having'a'Controlling Interest(defined below)in O'Brien. (i) Any Transfer of a non-Controlling Interest or non-managing interest in O'Brien to employees of O'Brien whereby "Controlling Interest" refers to any interest of a managing member,general partner, or controlling affiliate or stockholder of O'Brien. Section 7.5 Effectuation of Certain Permitted Transfers. No Transfer of this Agreement permitted pursuant to Section'7A (other than a Transfer'pursuant to a security _Financing Interest under Section 7.4(a) or(b))or section 7.6 shallbe-effective unless; at the tine_ of the Transfer,the person or entity to which such Transfer is made,by an-instrument in writing reasonably satisfactory to the Agency and in form recordable among the land records,shall expressly assume the obligations of RCD and/or O'Brien,as applicable,under this Agreement and agree to be subject to the conditions and restrictions to which the transferring entity is subject arising during this Agreement,to the fullest extent that such obligations are applicable to the particular portion of or interest in the Development conveyed in such Transfer. Anything to the contrary notwithstanding,the holder of a Security Financing Interest whose interest shall have been acquired by;through or under a Security Financing Interest or shall have been derived immediately from any holder thereof shall not be required to give to Agency such written assumption until such holder or other person is in possession of the Apartment Site and/or the Single Family Site, as'applicable,or entitled to possession thereof pursuant to enforcement of the Security Financing Interest. In the absence of specific written agreement by the Agency,or as otherwise provided herein, no such Transfer, assignment or approval by the Agency shall be deemed to relieve either of the Developers or any other party from any obligations under this Agreement. Section 7.6 Other Transfers with Agency Consent. The Agency inay,in its sole discretion, approve in writing other Transfers as requested by the Developers. In connection with such request,there shall be submitted to the Agency for review all instruments and ether legal documents proposed to effect any such Transfer. If a requested'Transfer is;approved by the Agency such approval shall be indicated to the Developers in writing. Such approval shall be 41 320\07\161927.9 ........................................ .............................. ............................. granted or denied by the Agency within thirty(30)days of receipt by the Agency of the Developers'request for approval of a Transfer. Section 7.7 Special Remedy for Prohibited Transfer. In the event that, in violation of the provisions of this Agreement,the Developers undertake a prohibited Transfer,the Agency shall be entitled to increase the purchase price paid by the Developers for the Property or portion thereof previously conveyed from the Agency to Developers by the amount that the consideration payable for such assignment or transfer is in excess of the sum of(a)the purchase price paid by the Developers to Agency for the Propel ty or portion thereof, and(b)the costs of subsequent improvements and development, including carrying charges,interests and fees, transfer taxes,real estate taxes, assessments and commissions,escrow fees and costs related thereto. The consideration payable for such assignment or transfer to the extent it is in excess of the amount so authorized, shall belong and be paid to the Agency and until so paid, the Agency shall have a lien on the Property for such amount. The rights and protections of holders of Security Financing Interests set forth in Section 8.9 shall also apply to this Section 7.7. Notwithstanding the above,the Agency may exercise its remedies set forth in this Section 7.7 only against the Developer or Developers that made the prohibited Transfer. ARTICLE 8 DEFAULT AND REMEDIES Section 8.1 - General Applicability. The provisions of this Article 8 shall govern the parties'remedies for breach or failure of this Agreement. Section 8.2 No Fault of Parties. Subject to Section 8.11,the following events constitute a basis for a party to terminate this Agreement without the fault of the other: (a) RCD, despite good faith and diligent efforts,is unable to satisfy all of the conditions precedent to the Agency's obligation to convey the Apartment Site to RCD, set forth in Article Two,by not later than June 30, 2005 or such later date mutually agreed upon by the Agency and RCD; or (b) O'Brien, despite good faith and diligent efforts, is unable to satisfy all of the conditions precedent to the Agency's obligation to convey the Single Family Site to O'Brien, set forth in Article Two by not later than June 30, 2005, or such later date mutually agreed upon by the Agency and O'Brien; or (c) The parties do not agree upon an alternative means to finance the Apartment Improvements under the circumstances and within the tune specified in the last paragraph of Section 2.5; or (d) The Agency does not adopt a resolution of necessity for an Additional Parcel for which there is no agreement for voluntary acquisition pursuant to section 2.11; or 42 320\07\161927.9 -------------------------- ..........- (e) The Agency,despite good faith and diligent efforts,is unable to obtain fee title to or orders of possession for all of the Additional Parcels by pursuant to Section 2.11; or (f) The Agency elects to abandon acquisition due to cost increases pursuant to section 2.11;or (g) The Agency, despite good faith and diligent efforts,is unable to convey either the Apartment Site to RCD or the Single Family Site to O'Brien and RCD or O'Brien,as applicable,are otherwise entitled to such.conveyance, (h) The Agency fails to approve the Apartment Financing Plan pursuant to Section 2.6 or the Single Family Financing Plan pursuant to Section 2.7; (i) The County fails to approve the FinalDevelopment Plans, the Final Subdivision Map,or the General Plan Amendment despite the Developers'good faith efforts and timely applications to obtain such approvals; or 0) After undertaking an inspection of the environmental conditions on,under, about and above the Property'either or both Developers conclude in the reasonable exercise of their discretion that the Property is or is likely to be contaminated by Hazardous Materials and, as a result of the contamination, the proposed development of the Property in accordance with this Agreement catmot be undertaken successfully without excessive financial risk to either or both Developers;provided,however,that the Agreement may only be terminated pursuant to this subsection:if the Developers notify Agency in'writing of such determination no later than sixty- (60) ixty_(60)days from the date of this Agreement. _ (k) The Agency Purchase Price Determination letter establishes the Purchase Price for the Property in an amount which exceeds the Purchase Price set forth in Section 3.2(a) above by more than ten percent(10%);provided,however,this Agreement may only be ten-ninated pursuant to this Section 8.2(k)within fifteen(15)days of the date of'receipt of the Agency Purchase Price Determination by the Developers from the Agency. (1) ,After receiving confirmation from the County regarding the required scope of the Infrastructure Improvements(including required off-site traffic mitigation finprovements required as conditions of lad use approvals'for the Development),Developers reasonably determine that the cast, tinning,and/or shared financing of construction of required Infrastructure Improvements by Developers make the Development financially infeasible;provided,however, that this Agreement may only be terrminated pursuant to this subsection if either or both Developers notify the Agency in writing of such determination no later than ninety(90)days from the date of this Agreement. Upon the happening of any ofthe'above-described events, and at the election of any party,this Agreement may be terminated by written notice to the other parties. After termination,no party shall have any rights against or liability to the other parties under this 43 320107\161927.9 ... ............................................ ......... ........................................................_..............__. ..................................... Agreement,except that the indemnification provisions of Sections 6.7(b), 10.7 and 10.9 shall survive such termination and remain in full force and effect. Section 8.3 Fault of Agency. Except as to events constituting a basis for termination under Section 8.2, and subject to Section 8.11, and provided further that the Developers have satisfied their obligations hereunder,the following events each constitute an Event of Default by the Agency and a basis for the Developers to take action against the Agency: (a) The Agency, without good cause,,fails to convey the Property to the Developers within the time and in the manner set forth in Article 3 or Section 5.2(b),and the Developers are otherwise entitled by this Agreement to such conveyance;or (b) The Agency breaches any other material provision of this Agreement. Upon the happening of any of the above-described events, the Developers shall first notify the Agency in writing of its purported breach or failure, giving the Agency sixty(60) days from receipt of such notice to cure or,if cure cannot be accomplished within sixty(60)days,to commence to cure such breach, failure, or act. In the event the Agency does not then so cure within said sixty(60) days„or if the breach or failure is of such a nature that it cannot be cured within sixty(60)days, the Agency fails to commence to cure within such sixty(60)days and thereafter diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty(120)days,,then the Developers shall be afforded all of their rights at law or in equity,by taking all or any of the following remedies: (1)terminating in writing.this Agreement(provided,however,that the indemnification provisions of Sections 6.7(by, 10.7 and 10.9 shall survive such teianination) and(2)prosecuting an action for damages and/or specific performance. Section 8.4 Fault of Developers._Except as to events constituting a basis for termination under Section 8.2, and subject to Section 8.11, and provided further that the Agency has satisfied its obligations hereunder with respect to conveying title to the property and exercising its power to give consents and approvals as reasonably requested,the following events in(a)through(mi)below, each constitute an Event of Default by the Developers and a basis for the Agency to take action against the Developers: (a) The Developers fail to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article Two and Article Three,one or more of the conditions precedent to the Agency's obligation to convey the Property to the Developers; or (b) The Developers refuse to accept conveyance from the Agency of the Property within the time periods and under the tenns set forth in Article 3;or (c) RCD fails to pay all amounts due under the Agency Note within the tunes and in the manner specified in Article 4 and the Agency Note;or (d) The Developers construct or continence to construct the Development in violation of Article 5; or 44 320\07\161927.9 (e) The Developers have not satisfied all material preconditions set forth in this Agreement(unless waived by the Agency in writing)for commencement of construction of the Development;by the time for commencement of construction set forth in the Development Schedule,or fail to commence or complete construction of the Development within the times set forth in Article 5,or abandon or suspend construction of the Development'prior to completion of all construction for a period of sixty(60)days after written notice by the Agency of such abandonment or suspension; or (f) The Developers fail to comply with any material obligation or requirement set forth in Article E; or (g) A Transfer occurs, either voluntarily or involuntarily,in violation.of Article 7;or (h) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate or report submitted to the Agency in connection with this Agreement proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to the.Agency; or (i)' A court having jurisdiction shall have made or entered any decree or order (1) adjudging either of the Developers or any of the entities which are general partners,limited partners,or joint venture partners in the Developers to be bankrupt-or insolvent,-(2) approving as property filed a petition seeping reorganization of either ofthe23evelopers or any of the entities which are general partners,limited partners,or joint venture partners in the Developers seeking any arrangement'for either of the Developers under the bankruptcy law or any other applicable debtor's relief law or statute of the United Mates or any state or other jurisdiction, (3) appointing a receiver,trustee, liquidator, or assignee of either of the Developers or any of the entities which are general.partners,limited partners, or joint venture partners in the Developers in bankruptcy or insolvency or for any of their properties,or(4) directing the winding up or liquidation of either of the Developers or any of the entities which are general partners,limited partners,or joint venture partners in the Developers,if any such decree or,order described in clauses (I)'to (4), inclusive;provided,however,the occurrence of any of the foregoing events with respect to a limited partner or non-managing member of one of the Developers shall not constitute a default if, at the time of a Transfer and.Agency approval of the organizational documents of the transferee,the Developers show to the Agency's reasonable satisfaction that the limited partner's or non-managing member's capital contribution to the developer entity was fullysatisfied prior to the Transfer or is assumed by the other partners or members. The occurrence of any of the Events of Default in this subsection'with respect to RCD or the Partnership or any of the Partners in the Partnership shall'act to accelerate automatically, without the need for any action by the Agency,the indebtedness evidenced by the Agency Nate; or (j) Either of the Developers or any of the entities which are general'partners, limited partners,or joint venture partners in the Developers shall have assigned its assets for the benefit of its creditors (other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property,unless the property so 45 3201071161927.9 ................................. ................................. ............................ ................. assigned, sequestered, attached or executed upon shall have been returned or released within ninety(90) days after such event(unless a lesser time period is permitted for cure under any other mortgage on the Property,in which event such lesser time period shall apply under this subsection 6)as well)or prior to sooner sale pursuant to such sequestration,attachment,or execution,provided, however,the occurrence of any of the foregoing events with respect to a limited partner or non managing member of one of the Developers shall not constitute a default if, at the time of a Transfer and Agency approval of the organizational documents of the transferee,the Developers show to the Agency's reasonable satisfaction that the limited partner's or non-managing member's capital contribution to the developer entity was fully satisfied prior to the Transfer or is assumed by the other partners or members. The occurrence of any of the Events of Default in this subsection with respect to RCD or the Partnership or any of the Partners in the Partnership shall act to accelerate automatically,without the need for any action by the Agency, the indebtedness evidenced by the Agency Note; or (k) Either of the Developers shall have voluntarily suspended its business or, if either of the Developers is a partnership,the partnership shall have been dissolved or terminated; or (1) There shall occur any default declared by any,lender under any loan document related to any loans,other than the Agency Loan, secured by a deed of trust on the Development, and all cure periods provided by such loan document have expired without a remedy of the default and the default has not been waived by the tender. The occurrence of an Event of Default under this subsection shall-act to accelerate automatically,without the need for any action by the Agency, the indebtedness evidenced by the Agency Note;*or (m) Either of the Developers breach any other material provision of this Agreement or any other Agency Document. (n) Remedies. Upon the happening of any of the above-described events,the Agency shall first notify the Developers in writing of their purported breach, failure or act above described, giving the Developers sixty(60)days from receipt of such notice to cure, or,if cure cannot be accomplished within said sixty(60)days,to commence to cure such breach, failure, or act. If RCD has transferred the Apartment Site and Apartment*Improvements to the Partnership, then the Agency shall also give written notice of the purported breach to the limited partner of the Partnership(provided that the Partnership has given the Agency written notice of the limited partner's name and address,and,provided further, that the Agency's failure to provide such notice to the limited partner shall not result in any liability to the Agency). In the event the Developers or the limited partner of the Partnership,if any, fail to cure within said sixty (60) days, or if such breach is of a nature that it cannot be cured within sixty(60)days,the Developers or the limited partner of the Partnership,if any, fail to commence to cure within said sixty(60) days and diligently complete such cure within a reasonable time thereafter but in no event later than one hundred twenty(120) days, then, subject to Section 8.11 below, the Agency shall be afforded all of its rights at law or in equity by taking any or all of the following remedies: 46 320\07\161927.9 ............. ..................... (1) Termination of this Agreement by written notice to the Developers; provided,however, that the Agency's remedies pursuant to this Article 8 or any other Agency Document and the indemnification provisions of Sections 6.7(b), 10.7 and 10.9 shall survive such termination; (2) If the default occurs following conveyance of the Property or portion thereof,prosecuting an action for damages or specific performance with regard to the portions of the Property conveyed to the Developers; and (3) Any of the remedies specified in Sections 8.6(with respect to RCD defaults only), 8.5, 8.7 or 8.8. Notwithstanding the notice and cure periods set forth above: (x)if a lesser cure period or notice requirement is allowed before a default occurs under any either applicable Agency Document, such periods shall control in this Agreement as well; and(y)with respect to an Event of Default by RCD described in subsection 0), (k),or(m)above,the indebtedness evidenced by the Agency Nate shall be automatically accelerated,without the need for action by the Agency, the provision of any notice,or the passage of any cure period. Section 8.5 RigLt of Reverter. In the event that, fallowing close of Escrow,,this Agreement is terminated pursuant to Section 8.4 and such termination occurs prior to issuance of a Certificate of Completion for the Apartment nrnprovements and/or the Single family Improvements,then the Agency shall have the right to reenter and take possession of the portion of the Property for which a Certificate of Completion has not been issue:'and all improvements thereon and to revest in the Agency the estate of the Developers in the Property or such portion thereof. Upon revesting in the Agency of title to the Property,or portion thereof,the Agency shall promptly use its best efforts to resell it consistent with its obligations under state law. 'Upon any sale or contract for development the proceeds shall be applied as follows: (a) First,to reimburse the Agency'for any costs it incurs in managing or selling the Property or portion thereof(after exercising its right of reverter),including but not limited to amounts to discharge or prevent liens or encumbrances arising from any acts or omissions of the Developers; (b) Second., to reimburse the Agency for damages to which it is entitled under this Agreement by reason of the Developers'default; (c) Third,to the Developers up to the sutrt of the amount of the purchase price paid to the Agency by the Developers pursuant to Section 4.2 for the portion of the Property which has reverted to the Agency and the reasonable cost of the improvements the Developers have placed on such portion of the Property and such other reasonable casts Developers have incurred directly in connection:with development of the Property(material compliance by the 47 320107\161927.9 .. ......... ......... ........ ......... ......... ......... ......................_.................._.. Developers with the approved Financing Plan shall be conclusive evidence of the reasonableness of such costs); and (d) Fourth,any balance to the Agency. Section 8.6 Acceleration of Agency Note. In the event of an occurrence of an Event of Default by RCD or an Event of Default with respect to the Apartment Development,the Agency shall have the right to cause all indebtedness of RCD to the Agency under this Agreement and the Agency Note,together with any accrued interest thereon, to become immediately due and, payable. RCD waives all right to presentment, demand,protest or notice of protest or dishonor.- The Agency may proceed to enforce;payment of the indebtedness and to exercise any or all rights afforded to the Agency as a creditor and secured party under the law including the Uniform Commercial Code,including foreclosure under the Agency Deed of Trust. RCD shall be liable to pay the Agency on demand all expenses,costs and fees(including,without limitation, attorney's fees and expenses)paid or incurred by the Agency in connection with the collection of the Agency Loan and the amounts due under the Agency Note,and the preservation, maintenance,protection, sale, or other disposition of the security given for the Agency Loan and the amounts due under the Agency Note. Section 8.7 Right to Cure at Developers'Expense. The Agency shall have the right to cure any monetary default by the Developers under a loan in connection with the Development after notice to Developer of the Agency's intent to cure,but only immediately prior to expiration of all applicable notice and cure periods available to Developer. Each of the Developers agree to reimburse the,Agency for any funds advanced by the Agency to cure a monetary default by such Developer upon demand therefore,together with.interest thereon at the lesser of the rate of ten percent(10%)per annum or the maximum rate permitted by law from the date of expenditure until the date of reimbursement. Section 8.8 Construction Plans. If the Agreement is terminated pursuant to Sections 8.2 or 8.4, the Developers, at no cost to the Agency, shall deliver to the Agency copies of any construction plans and studies in the Developers'possession or in the possession of Developers' consultants related to development of the Apartment Improvements and the Single Family Improvements on the Property, subject to the rights of third parties. In the event the Agency utilizes the construction plans or studies,the Agency shall indemnify the Developers for any claims arising from the use of construction plans or studies by the Agency pursuant to this Section 8.8. Section 8.9 Rights of Mortgagees. Any rights of the Agency under.this Article 8 shall not defeat, limit or render invalid any Security Financing Interest permitted by this Agreement or any rights provided for in this Agreement for the protection of holders of Security Financing Interests. Any conveyance or reverter of the Property to the Agency pursuant to this Article 8 shall be subject to Security Financing Interests pennitted by this Agreement. Section 8.10 Remedies Cumulative. No right, power, or remedy given by the terms of this Agreement or the Agency Documents is intended to be exclusive of any other right,power, or rernedy, and each and every such right,power, or remedy shall be cumulative and in addition 48 3201071161927.9 to every other right, power,or remedy given by the terms of any such instrument,or by any statute or otherwise. Neither the failure nor any delay to exercise any such rights and remedies shall operate as a waiver thereof,nor shall any single or partial exercise of any such right or remedy preclude any ether or further exercise of such right or remedy,or any other right or remedy. Section 8.11 Separation of Defaults, Remedies; Covenants. (a) Prior to the sooner to occur of: (i) Commencement of Construction of the Development, or(ii)the firstconveyance of either the Apartment Site to RCD or the Single Family Site to O'Brien pursuant to Section 5.2(b),default hereunder by either of the Developers or with respect to any of the Property shall constitute a default by both Developers for which.the Agency may exercise any of its remedies under this Article 8 with respect to both Developers and the entire Property;provided,however that the Agency may exercise its remedies set forth in Sections 8'.4(n)(2) or 8.7 only against the:Developer or Developers that actually defaulted. (b) Fallowing the sooner to occur of- (i)Commencement of Construction of the Development,or(ii)the first conveyance of either the Apartment Site to RCD or the Single Family Site to O"Brien pursuant to Section 5.2(b), default by RCD or default related to the Apartment Development shall entitle the Agency to exercise its remedies under'this Article 8 with respect only to RCD and the Apartment Development(and not with respect to O'Brien and the Single Family Development) and default by O'Brien or default related to the Single Family Development shall entitle the Agency to exercise its remedies under this Article 8 with respect only to O'Brien and the Single Family Development(and not with respect to RCI: and the Apartment Development). In such event, termination of'the Agreement pursuant to Section 8.4 shall mean:termination of the Agreement only with respect to.RCD or O'Brien, whichever is in default hereunder. For purposes of this Section 8.11 only, "Commencement of Construction of the Development" shall mean recordation of deeds of trust for construction financing against both the Apartment Site and the Single Family Site. (c) Following the sooner to occur of: (i) Commencement of Construction of the Development, or(%i)the first conveyance of either the Apartment Site to RCD.or the Single Family Site to O'Brien pursuant to Section 5:2(b), either Developer shall be entitled to terminate this Agreement(with respect to its own portion of the Development only)pursuant to Section 8.2 independent of the other Developer's decision to terminate the Agreement. (d) Following the sooner to occur of: (i) Commencement of Construction of the Development, or(ii)the first conveyance of either the Apartment Site to RGI)or the Single Family Site to O'Brien pursuant to Section 5.2(b), a default by the Agency under Section 8.3 shall entitle either Developer to terminate this Agreement(with respect to its own portion of the Development only)independent of the'other Developer's decision to terminate the Agreement. (e) Notwithstanding anything to the contrary contained herein,and other than the obligations to be set forth in the Infrastructure Agreement, RCD, its successors and assigns shall be responsible for the covenants made in this Agreement only to the extent they pertain to the Apartment Site, and O'Brien,its successors and assigns shall be responsible for the covenants 49 320107\169927.9 ........................................ ...................................... .................................... ................. made in this Agreement only to the extent they pertain to the Single Family Site, and neither Developer shall be responsible for such covenants to the extent such obligations pertain to the other Developer's portion of the Development, except as otherwise provided in the Infimtructure Agreement. Section 8.12 Waiver of Terms and Conditions. The Agency Redevelopment Director may at his or her discretion waive in writing any of the terms and conditions of this Agreement, or the other Agency Documents, without the Developers completing an amendment to this Agreement. The Redevelopment Director may also at his or her discretion agree to modification of the Development Schedule,provided that, with such modification,the required date for completion of the Development is not extended beyond 200—. No waiver of any default or breach by the Developers or of the Agency,as applicable,hereunder shall be implied from any omission by the Agency or the Developers, as applicable,to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant,term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant,term, or condition. The consent or approval by the Agency to or of any act by the Developers requiring fin-ther consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right,power,or remedy shall in no event constitute a cure or a waiver of any default under this Agreement or the Agency Documents,nor shall it invalidate any act done pursuant to notice of default, or prejudice the Agency in the exercise of any right,power,or remedy hereunder or under the Agency Documents,unless in the exercise of any such right,power,or remedy all obligations of the Developers to Agency are paid and discharged in full. ARTICLE 9 SECURITY FINANCING AND RIGHTS OF HOLDERS Section 9.1 No Encumbrances Except for Development Purposes. Notwithstanding any other provision of this Agreement mortgages and deeds of trust,or any other reasonable method of security are permitted-to be placed upon the Property but only for the purpose of securing loans approved by the Agency pursuant to the approved Financing Plans. Mortgages, deeds of trust,or other reasonable security instruments securing loans approved by the Agency pursuant to the approved Financing Plans are each referred to as a "Security Financing Interest." The words "mortgage" and "deed of trust" as used in this Agreement include all other appropriate modes of financing real estate acquisition, construction, and land development, including any such modes used pursuant to the approved Financing Plans. Section 9.2 Holder Not Obligated to Construct. The holder of any Security Financing Interest authorized by this Agreement is not obligated to construct or complete any finprovements or to guarantee such construction or completion; nor shall any covenant or any other provision in conveyances from the Agency to the Developers evidencing the realty comprising the Property or any part thereof be construed so to obligate such holder. However, nothing in this Agreement shall be deemed to pen-nit or authorize any such holder to devote the 50 320107k161927.9 ............ . ........... .................... .......... Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses of improvements provided for or authorized by this Agreement. Section 9.3 Notice of Default and Right to Cure. Whenever the Agency pursuant to its rights set forth in Article S of this Agreement delivers any notice or demand to the Developers with respect to the commencement,completion,or cessation of the construction of the Apartment Improvements or the Single Family Improvements,the Agency shall at the same time deliver to each holder of record of any Security Financing Interest creating a lien upon the Apartment Site or the Single Family Site, as applicable, or any portionthereof, a copy of such notice or demand; provided,however, that the Agency shall have no liability to the holder of a Security Financing Interest for any failure by the Agency to provide notice to such holder. Each such holder shall (insofar as the rights of the Agency are concerned.)have the right,but not the obligation,at its option, within one hundred twenty(120) days after the-receipt of the notice,to cure or remedy or commence to cure or remedy any such default or breach affecting the Property which is subject to the lien of the Security Financing Interest held by such holder and to add the cast thereof to the security interest debt and the lien on its security interest. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Apartment Improvements, or the Single Family Improvements, as applicable(beyond the extent necessary to conserve or protect such improvements or construction already made)without first having expressly assumed in writing the Developers' obligations to the.,Agency relating to such improvements under this Agreement. The holder in that event must agree to complete,in the manner provided in this Agreement, the Apartment Improvements'to which the lien or title of such holder relates. Any such holder properly completing such Apartment improvements or the Single Family Improvements,as applicable, pursuant to this paragraph shall assume all rights and obligations ofthe Developers under this _ Agreement and shall be entitled,upon written request made to the Agency,to a Certificate of Completion from the Agency. Section 9.4 Failure of Holder to Complete I ,prove�nents. In any case where six(6) months after occurrence of an Event of Default by the Developers in completion of construction of the Apartment Improvements or Single Family Improvements under this Agreement,the holder of record of any Security Financing Interest,having first exercised its option to construct, has not proceeded diligently with construction,the Agency shall be afforded those rights against such holder it would.otherwise have against the Developers.under this.Agreement. Section 9.5 Ri bt of Agencv to Cure. In the event of a default or breach by the Developers of a Security Financing Interest prier to the completion of development, and the holder has not waived or exercised its option to complete the development called for on the Property,the Agency may cure the default,prior to the completion of any foreclosure. In such event the Agency shall be entitled to reimbursement from whichever of the Developers is the party to the defaulted loan of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the Apartment Site or Single Family Site,as applicable,or any portion thereof to the extent of such costs and disbursements. The Agency agrees that such lien shall be subordinate to any Security Financing Interest, and the Agency shall execute from time to time any and all docunnentation reasonably requested by Developer or holder to effect such subordination. 51 320107\161927.9 ........................................ ............................. .............................- .......................... Section 9.6 Right of Agengy to Satisfy Other Liens, After the conveyance of title to the Property or any portion thereof and after the Developers have had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the Property or any portion thereof,the Agency shall have the right to satisfy any such lien or encumbrances and receive ilmnediate reimbursement of the cost of reimbursement from the Developers;provided, however,that nothing in this Agreement shall require the Developer to pay or make provision for the payment of any tax, assessment, lien or charge so long as the Developer in good faith shall contest the validity or amount therein and so long as such delay in payment shall not subject the Property or any portion thereof to forfeiture or sale. Section 9.7 Holder to be Notified. The provisions of this Article 9 shall be incorporated into the relevant deed of trust or mortgage evidencing each Security Financing Interest to the extent deemed necessary by, and in form and substance reasonably satisfactorily to the Agency,or shall be aelmowledged by.the holder of a Security Financing Interest prior to its coming into any security right or interest in the Property. Section 9.8 Additional Mortgagee Protections. The Agency agrees to make amendments to this Agreement as reasonably requested by a holder of a Security Financing Interest or by a tax credit investor limited partner of the Partnership to provide any reasonably required assurances to such Holder or investor limited partner and the Agency's Deputy Director Redevelopment is hereby authorized to enter into such amendments without further action by the Agency. ARTICLE 10 GENERAL PROVISIONS Section 10.1 Notices,Demands and Communications. Formal notices, demands,and communicationss between the Agency and the Developers shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail,postage prepaid,return receipt requested or delivered personally, to the principal office of the Agency and the Develo pers as follows: Agency: Contra Costa County Redevelopment Agency 651 Pine Street,North Wing,4th Floor Martinez, CA 94553 Attn: Redevelopment Director Developers: RCD: Resources For Community Development 2131 University Ave., Suite 224 52 320W7\169927.9 ....... .............. ...................... ............................. ........... Berkeley, CA 94704 Attn: Executive Director O'Brien. The O'Brien Group 2001 Winward Way, Suite 200 San:Mated,CA 94404-2473 Attn:James Pollart` Such written notices,demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by mail as provided in this Section 10.1. Receipt shall 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 10.2 Atop-Liability of Agqgcy Officials, Employees and Agents. No member, official,employee or went of the Agency or the County shallbe personally liable to the Developers,or any successor in interest,in the event of any default or breach by the Agency or for any amount which may become due to the Developers or successor or on any obligation under the terms of this Agreement.' No member, officer, director,shareholder,partner,agent or employee of Developers shall be personally liable.hereunder. Section 10.3 Forced Delay. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be.deemed to be in'default where delays or - defaults are due directly or directly to war; insurrection; strikes or other labor unrest;lock;-guts, riots, floods; earthquakes; fires;casualties; acts of God; acts ofthe public enemy;epidemics; - quarantine restrictions; freight embargoes; govermnental restrictions or priority;+litigation (including suits filed by third parties concerning or arising out of this Agreement);weather or soils conditions which,in the opinion of the Developers' contractors,will necessitate delays; inability to secure necessary labor,materials or tools; delays of any contractor,sub-contractor or supplier; acts of the other party;acts or failure to act of any public or governmental agency or entity(other than the acts or failure to act of the Agency);or any other causes (other than Developers' inability to obtain financing for the Development)beyond the control or without the fault of the party claiming an extension'of time to perform. An extension of time for any cause will be deemed granted if notice by the party claiming such extension is sent to the other within thirty(30)days from the date the party seeking the extension first discovered thecause and such extension of time is not rejected in writing by the other party within ten(10) day,s of receipt of the notice. Times of performance under this Agreement may also be extended in writing by the Agency and the Developers, as set forth in Section 8.12. Section 10.4 Inspection of Books and Records. Upon request, the Developers shall peinrki.t the Agency to inspect at reasonable times and on a confidential basis those books,records and all ether documents of the Developers necessary to determine Developers'compliance with the terms of this Agreement. The Developers also have the right at all reasonable times to inspect the books,records and all other documentation of the Agency pertaining to its obligations under this Agreement. 53 320107\161927.9 _ ...._. .._ ......... _........ ......... . ......... .... ........ ............ .............................................__._.. Section 10.5 Provision Not Mergers with Deeds. None of the provisions of this Agreement are intended to or shall be merged by any grant deed transferring title to any real property which is the subject of this Agreement from Agency to Developers or any successor in interest, and any such grant deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 10.6 Title of Parts and Sections. Any titles of the articles, sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any part of its provision. Section 10.7 General Indemnification. RCD agrees to indemnify,protect,hold harmless and defend(by counsel reasonably satisfactory to the,Agency)the Agency, its boardmembers,officers and employees, from all suits, actions,,claims, causes of action,costs, demands,judgments and liens arising out of RCD's performance or non-performance under any of the Agency Documents, or any other agreement executed pursuant to the Agency Documents, except as caused by the Agency's willful,misconduct or gross negligence. O'Brien agrees to indemnify,protect,hold harmless and defend(by counsel reasonably satisfactory to the Agency) the Agency,its boardmembers, officers and employees,from all suits, actions, claims, causes of action, costs, demands,judgments and liens arising out of O'Brien"s performance or non- performance under any of the Agency Documents, or any other agreement executed pursuant to the Agency Documents, except as caused by the Agency's willful misconduct or gross negligence. The provisions of this section shall survive expiration of the Tenn or other termination of Ns Agreement, and shall remain in full force and effect. Section 10.8 Applicable-Lave. This Agreement shall be interpreted under and pursuant to the laws of the State of California. Section 10.9 No Brokers. All parties represent to the other parties that it has not had any contact or dealings regarding the Property,or any communication in connection with the subject matter of this transaction,through any real estate broker or other person who can claim a right to a'commission or finder's fee. If any broker or finder makes a claim for a conrnnission or finder's fee based upon:a contact, dealings,or communications,the party through whom the broker or finder makes this claim shall indeirinify, defend with counsel of the indemnified party's choice,-and hold the indemnified party harmless fiom all expense,loss,damage andclaims, including the indemnified pasty's attorneys' fees,if necessary,arising out of the broker's or finder's claim. The provisions of this section shall survive expiration of the Tenn or other termination of this Agreement,and shall remain in full force and effect. Section 10.10 Severability.. if any term,provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable,the remainder of the provisions shall continue in fall force and effect unless the rights and obligationsof the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. Section 10.11 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the 54 320\07\161927.9 ply prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorney's fees and costs'incurred in such action. Section 10.12 Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executers, successors in interest and assigns of each of the parties hereto except that there shall be no Transfer of any interest by any of the parties hereto except pursuant to the terms of this Agreement. Any reference in this Agreement to a specifically named>party shall be deemed to apply to any successor,heir, administrator, executor or assign of such party who has acquired an interest in compliance with the terms of this Agreement,or under law. The covenants and restrictions set forth an-this Agreement shall run with the land,and shall bind all successors in title to the property. However,on the termination ofthis Agreement, such covenants and restrictions shall expire. Each and every contract,deed.,or other instrument hereafter executed covering or conveying the Property shall be held conclusively to have been executed,delivered,and accepted subject to such covenants and restrictions,regardless of whether such covenants or restrictions are set forth in such contract, deed,or other instrument, unless the Agency expressly releases the Property from the requirements of this:Agreement. Notwithstanding the above,the provisions of Sections 6.2,6.3,6.5, 6.6,and 6.7(x)(2) shall be the only provisions of this Agreement that bind the Single Family,Improvement homeowners and any homeowner's''association. Section 10.13_ Parties Not Co-Venturers. Nothing in this Agreement is intended to or does establish.the Agency and the Developers as partners,co-venturers, or principal and agent with one another. Section 10.14 Warranties. The Agency expresses no warranty or representation to the Developers as to fitness or condition of the Property the subject of this Agreement for the building or construction to be conducted thereon. Section 10.15 Time of the Essence. In all matters under this Agreement;the,parties agree that time is of the essence: Section 10.16 Action by Agency. Except as may be otherwise specifically provided in this Agreement or another Agency Document,whenever any approval,notice,direction, finding, consent,request, waiver,or other action by the Agency is required or permitted under this Agreement>.or another Agency Document, such action may be given,made,or taken by the Agency Redevelopment Director, or by any person who shalt have been designated in writing to the Developers by the Agency Redevelopment Director, without further approval by the Agency Board. Any such action shall be in writing. Except as may be otherwise specifically provided in this Agreement or another Agency Document, any approval,notice, direction, finding,consent, request, waiver,or other action by the Agency required under this Agreement or another Agency Document, shall be governed by the standard of reasonableness. Notwithstanding any other provision of this Agreement, in the event that the Agency is 55 32=71161927.9 .......................................... .................................... .............. unable to provide the Agency Loan due to any reason beyond the exclusive control of the Agency, including, but not limited to, a requirement by the State of California(the"State")to transfer all,or a portion, of the Agency Housing Fund or other Agency funds,to one or more State funds,RCD and the Agency agree and acknowledge that the Agency shall have no obligation to make the Agency Loan. Section 10.17 Identity and Aghpr�i of Developers. RCD hereby covenants and warrants: that RCD is a duly authorized and existing California nonprofit public benefit corporation;that RCD is and shall remain in good standing and qualified to do business in the State of California; that RCD has full right,power and authority to enter into this Agreement and to carry out all actions on its part contemplated by this Agreement; that the execution and delivery of this Agreement were duly authorized by proper action of RCD and no consent, authorization or approval of any person is necessary in connection. with such execution and delivery or to carry out all actions on RCM's part contemplated by this Agreement, except as have been obtained and are in full force and effect or are not required to be obtained until a later date, such as the certificate of occupancy; that the person executing this Agreement on behalf of RCD has full corporate authority to do so; and flu-it this Agreement constitutes the valid,binding and enforceable obligation of RCD. O'Brien hereby covenants and warrants: that O'Brien is a validly existing California corporation;that O'Brien is and shall remain in good standing and qualified to do business in the State of California; that O'Brien has fall right,power and authority to enter into this Agreement and to carry but all actions on its part contemplated by this Agreement; that the execution and delivery of this Agreement were duly authorized by proper action of O'Brien, and no consent, authorization or approval of any person is necessary in connection with such execution and delivery or to carry out all actions on O'Briens part contemplated by this Agreement, except as have been obtained and are in full force and effect or are not required to be obtained until a later date, such as the certificate of occupancy; that the persons executing this Agreement on behalf of O'Brien,have full corporate authority to do so; and that this Agreement constitutes the valid, binding and enforceable obligation of O'Brien. Section 10..18 CgLnpleje Understanding of the Parties. This Agreement is executed in three(3)duplicate originals each of which is deemed to be an original. This Agreement and the attached exhibits constitute the entire understanding and agreement of the parties with respect to the matters set forth in this Agreement. Section 10.19 Conflict Among Agency Documents. In the event of a conflict between the term of this Agreement and any other Agency Document, the terms of this Agreement shall control to the extent of such conflict. Section 10.20 Entry by the Agency. The Developers shall permit the Agency,through its officers, agents, or employees, at all reasonable times,and accompanied by a representative of the Developers,to enter into the Development following reasonable written notice from the Agency(a)to inspect the works of construction to determine that the same is in conformity with the requirements of this Agreement, and (b), following completion of construction, to inspect the ongoing operation and management of the Development to determine that the same is in 56 320\M1 61927.9 ..................................... ........... ............. .......... .................... conformance with the requirements>of this Agreement.' The Agency shall not cause any delay by its entry pursuant to this Section 10.20. The Developers acknowledge that the Agency is under no obligation to supervise,inspect,or inform the Developers of the progress of construction,or operations and the Developers shall not rely upon the Agency therefore. Any inspection by the- Agency during the construction is entirely for its purposes in determining whether the Developers are in compliance with this Agreement and is not for the purpose of determining or informing the Developers of the quality or suitability of construction. The Developers shall rely entirely upon their own supervision and inspection in determining the quality and suitability of the materials and work,and the performance of architects,subcontractors, and material suppliers. Notwithstanding any provision of this Agreement to the contrary,neither Developer shall hear any liability to the Agency for injury to any Agency employee or representative occurring during the-exercise of the Agency's right of entry pursuant to this Section.10.20,unless caused by the willful misconduct of the Developers. Section 10.21 Assn = t To Goun Upon deactivation and dissolution of the Agency pursuant to the provisions of Health and Safety Code Section 33141, all of the rights of the Agency under this Agreement and the other Agency Documents shall be deemed assigned, and all the duties of the Agency under this Agreement and the other Agency Documents shall be deemed delegated,to the County. Section 10.22 Recordation of Agreement. This Agreement shall be recorded in the official Records of the County at the time of conveyance of the Property to the Developers by the Agency. - 57 320\071161927.9 ............................................................................... ................................................ ...... .............. IN WITNESS WHEREOF,the Agency and the Developers have executed this Agreement in triplicate on or as of the date first above written. DEVELOPERS: RESOURCES FOR COMM-UNITY DEVELOPMENT, a California nonprofit public beneprporation By: Its: THE O'BR&11� N ROUP, a California corporation B Y. Its: AGENCY: . CONTRA COSTA*COUNTY REDEVELOPMENT AGENCY, a public body, rporate and politic By: J, s Kenned Its: Redv elopmen irector � 58 320\071161927.9 ..............................- ........ . ........ . ........ ... ........ .... ........ ..... ........ ...... ........ ....... ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ EXHIBIT A Legal Description of the Property 32M07\161927.7 A-1 Exhibit A 1. 096-020-003 2. 096-020-077 096-020-078 3. 096-020-084 096-020-086 096-020-068 4. 096-020-079 5. 096-020-085 6. 096-020-087 7. 096-020-088 EXHIBIT A All that real property, in the unincorporated area of the County of Contra Costa, Mate of California, described as follows: A portion of the southeast '/4 of the southeast '/4 of Section 11, Township 2 North, Range 1 West, Mount Diablo Base and Meridian, described as follows: Beginning at a point from which the northwest corner of Block A, as said Block is so laid down, designated and delineated upon that certain Map entitled: "Map of Balla Monte Subdivision No. 1", filed march 22, 1927, in Map Book 20, Page 546, records of Contra Costa County, California, bears South 00 56' West, a distance of 350.04 feet; thence North 0' 56' Bast, a distance of 350.04 feet, thence North €" 56` East, a distance of 50.01 feet thence East a distance of 136.56 feet; thence South a distance of 50.00 feet; thence West, a distance of 137.38 feet to the point of beginning. a - �- � TV Cq .LEGAL DESCRIPTION �. REAL. PROPERTY In an uninco"rporated area, County of Contra,Costa; State of Califomia, describedas follows: PARCEL ONE. Lot 6, In Block A, as shown on the Map of "Bella Monte. Subdivision No. 1", Contra Costa County, California, filed_March 22, 1927, in Book 30 of Maps, Page,546;In the Office,of the County Recorder of Contra Costa County, PARCEL.TWO: Lot 6, In Block A, as shown on the Map of "Bella 'Monte Subdivision No. V, Contra.Costa"County, California,'filed March 22, 1927, In Book 20 of Maps,'Page 646, in the Subdivision. of-the Coupty 0,6corder of Contra Costa County: A.P.Nos.: 096-020-077 096-020-07.8 RESERVING THEREFR-OM: All oil, gas, casi.righead gas, Wsphaltum and other hydrocarbons - _ and chemical gas and- situated. or' located in. a.11. or any portion-of tYie lends. describec`1` herein lying more than five hundred feet (soo' ) below the surface thereof, together -with the right 'to slant drill for and remove all or any of . said gas, oil, casinghead gas,-•- asphaltum and .other hydrocarbons or chemical. gas and other minerals lying below a depth of more than five - hundred feet (so o., ) below the surface .thereof, .._.._...... .. ,including.,-.._the._ .right _ ..to. ..g.rant..__leas.es ....for.. .._or ._any o.f purposes-, but Without , any right whatsoever to enter upon the surf ack�. of said lands or any portion thereof within five hundred e fee'' (Bb0' ) -vertical distance below the surface .thereof. LEGAL DESCRIPTION C.1� REAL PROPERTY in an un€ncorporated area, County of Contra Costa, State of California, described as CM follows: PARCEL ONE: Being a portion of the southeast 114 of the southeast 114 of Section 11,Township 2 North, Range 1 West, Mount Diablo Base and Meridian. Commencing at a point farmed by the intersection of the West line of the southeast 114 of Sectibri 11, Township 2 North,,Range 1 West,Mount Diablo Base and Meridian, and the North line of the County Road running between Sections 11 and 14 of said Township and Range; said point being South 890 28' West 1324.44 feet and North 30 feet,from the southeast corner of Section 11, hereinbefore mentioned; thence from said paint of beginning, North along said quarter-quarter section line, 740.52 feet; thence East 100 feet; thence South 740.52 feet to the North line of the hereinbefore mentioned County Road;thence West 1010 feet to the point of beginning. PARCEL TWO: Being in Section 11, Township 2 North, Range 1 West, Mount Diablo Base and Meridian. Commencing at the point of intersection of the northerly boundary line of the County Road with the easteriy - boundar)Llne of the lands.of Giuseppe Sling and Mary Sllno, his wife, as described In Vol. 28 of Officim Record Pa e-173, -Ge ounty;'raan6in thence North 0" 50' East740.52 feet along rttre saidsterlPil� ilnc�, his wife, to a paint, thence WW 100 feet to a point; thence North 0° 50`East 334.28 feet to a point,thence South a9"48' East, 12-5- feet to a paint; thence South 01' 50' West 1073.27 fest to a point on the northerly boundary line of the County Road; thence West 25 feet to the point of commencement. EXCEPTING FROM PARCELS ONE ANIS TWO: Tie€merest conveyed to Contra--Costa-County-in--the deed.recorded November 1, .1994, Instrument:No._.._ _ 94267325, Official Records, Contra Costa County. PARCEL THREE: Being in Section 11, Township 2-North, Range 1 West, Mount Diablo Base and Meridian. Commencing at a point 25 feet East from the intersection of the North boundary line of the County Road and the easterly line of the lands of Giuseppe Slino and Mary SUno, his wife, as the same are described in Volume 28 of Official Records, Page 173, records of Contra Costa County; running thence North_00 50' East, 1073.27 feet to a point; thence South 890 46' East, 242.98 feet to a point; thence South 01, 50'West, 1072.58 feet to a paint on the North boundary of the said County Road; thence West 203 feet to the point of commencement. First.American Title EXCEPTING FROM PARCEL THREE:' vs. The interest conveyed to Contra Costa County in the Deed recorded October 28, 1894,Instrument No. 94-264640,-official.Records, Contra Costa County. PARCEL FOUR: Portion of the southeast 1/4 of the southeast 114 of Section 11,Township 2 North, Range 1 West,M.DBA M., described as follows: Beginning at a paint from which the northwest corner of Bloc Pas- a46n In on Office6f Bella Monte Subdivision. No. 1, filed March 22, 1927,. in.Book 20 0# Maps, 9 Recorder.of Contra Costa County, bears South 00 56' West,,650.05 feet, said point also being the at ux, to Francesco northwest'corner of the parcel of land 929crin'BdookIn t172he Dof official Reed ecords,ds,Pagtonlo e thence from said Macaluso, at ux, 'recorded January 3, 192 point of beginning South ago 47` East, ence$outhe lalong,the y, line alongfsal the East line of said MacaiuId Macaluso.Parcal (172 Oso Parcel (172 feet to the northeast corner thereof, raliel with the North line of said parcel #o the West lime OR 17) 50 feet; 'thence North 89° 47 West:,pa thereof; thence North 0°' S6' East, along said West line, to the point of beginning. A.P.Nos.: ' 096-020-084,. 086 and.068 RESERVING THEREFROM; All oil, gas, casinghead gas-, asphaltum and otherhydrocarbons and chemical ga-a and other minerals now .or hereafter found., situated -or locates d � rtion the. lands described' - herein- y11 g�-M .. �`- '0' - low the surface thereof, together with the right to dant` drill far and remove a or any of said gas, oil,, casinghead gas," "asphaltum and other hydrocarbons or chemical gas and other minerals lyingbelow a depth of more than five hundred feet (500' ) below the surfaQe thereof, including the right to grant leases , for all or any of . said- purposes,. but without any right whatsoever to enter upon the surface, `of> said Sands or any portion -thereof - w-ith n. f�ve-.hund�r-ed fee :(5to' ) vertical distance below the-. surface thereof. L nh Vu Dinh Hoang to Centra Costs County AI N: 096.820-079 EXHIBIT$W' Pee Tina A portion of the subdivision as designated "Map of Belle Monte Subdivision No.1" filed March 22, 1927 in Book 20 of'Maps at page 548, Contra Costa County, California, also being all of that parcel of land granted to Unh Vu Dinh Hoang recorded October 21, 2002 at document number 2002.0381790 described as follows: Being all of Lot 4 in Block A as shown and delineated on said map. This real property description has been prepared by me or under Imy direction, in conformance with the Professional Land Surveyors Act. Signature: , Licensed Land Surveyor zwzry ' �` Contra Costa County Public Works: r._ Exp.12-31-04— No.5999 Gate: RZ:mm G:t rpDatatCtedeahE)(H1BITS'2002i L.tnh Vu Dinh Hoang.doc Order No, 615-6346 UPDATE EnIurr "At, LEGAL DESCIZIPMON THE LAND DESCRIBED HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA, UNINCORPORATED AREA, AND IS DESCRIBED AS FOLLOWS: LOT 3, IN BLOCK A, AS SHOWN ON THE MAP OF THE "BELLA M'ONTE SUBDIVISION NO. 1111 CONTRA COSTA COUNTY CALIFORNTA, FILED MARCH 22, 1987,IN BOOK 20 OF N4APS, PACE 546, IN THE OFFIC9 OF THE COUNTY R CO DER OF CONTRA COSTA COUNTY, A.P.N. 096-420.085 .�� � CLTA Preliminary Report Carlos A. Hague to Contra Costa County rr: APIA. 096-020-087 r' BXHIBIT "A" , Fee Title A portion of the subdivision as designated "Map of Belle Monta Subdivision No. 1" filed March 22, 1927 in Book 20 of Maps at page 546, Centra Costa County, California also being ;Parcel One in the grant deed to Carlos A. Hague recorded 'June 14, 2002.at series number 2002.0210319 described as follows: Being all of Lot 'I of Black A as shown and delineated on said map. Excepting 'therefrom: That portion conveyed to Centra Costa County by grant deed recorded February 9, 1995 at series number 95--23009 This real property description has been prepared by. me or under my direction, in conformance with the Professional Land Surveyors Act. Signature: . Licensed Land Surveyor _ . Contra Costa County Public Works exp: 12-31-04 *- r N No.5999 RZ:mm G:1GrpDatatClerical\EXHlBrrS120021Garlos A.Hague APN 096 020 087.doc Carlos A. Hague to Contra Costa County APN: 096-020-088 EXHIBIT "A" Fee Title A portion of the subdivision as designated "Map of Bella Monte Subdivision No. V filed March 22, 1927 in Book 20 of Maps at page 546, ContraCosta County, California also being Parcel Two in the grant deed to Carlos A. Hague recorded June 14, 2002 at series number 2002-0210319 described as follows: Being all of Lot 2.of Block A as shown and delineated on said map. Excepting Therefrom: That portion conveyed to Contra Costa County by grantdeed recorded February 9, 1995 at series'number 95=231309 This--real property description has been prepared by`me or under my direction, in conformance with the Professional Land Surveyors Act _ D Signature. Licensed Land Surveyor Contra Costa County Public Works � axe.121-31-04 �r No.5999 , Date: 1A OF CA�IF� RZ:mm C.\GrpData\Cie.,tcallEXHISIT5120021Cario$A.Plague APN 096 024 088.doa ........... EXHIBIT B Map Showing Location of the Property and the General Designation of the Apartment Site and the Single Family Site 320107/1 B 1827.7 B-1 Ott t tt utl �t 11 HUM . . _ _._ _ .. � tltlChf 55b'd MC7'7'tlA1 •.__. ... , x �I "QA'd 153h�C7NJi5 � u u) C ul ED • Id C \l{` U 'mac �+� OAC m EXHIBIT C-1 Financing Proposal (Apartment Improvements) 320\07\161927,7 C-1-1 BAY POINT APARTMENTS PAGE I Prepared Far; Resources for Community Development Prepared By: California Housln Partnersn Cor; ration Version: Revised: 2/24/03 Revised: 24-Feb.03 3:30 P SOURCES OF FUNDS ,i0 1R 5 OF FL!NOS•P RMAN NT TOTAL OID COMMENTS j INTEREST COST MIL&FST RATE TERM f rl Tas-Esempt Bands: Bank Purchase 21011,100 6.410% 30 Bond Rate:6.250% Redevelopment Agency Loan 2,272,462 2.000% 1.358% 55 Per UnIt44,558 County HOME/C08G Loan 1,378,000 2.000% 1.358% 55 Par Unit27,020 HOPWA Loan 350,000 0.000% 0.000% 58 Per UnitS.863 Affordable Housing Program 229,500 O.00G% 0.000% 30 ROA Housing Bond fund Grant 570,649 For otr-sites provided directly by RCD HCO Multifamily Housing Program 3.101,692 3.000% 2.209% 55 Mandatory annual Interest: 0.42% Capital Contributions General Partner 100 %ownership: 0.1% Limited Partners §.7})2.400 %ownership: 99.9% TOTAL SOURCES 14,765,904 Surplus/(Shortfall) 0 erumreq OF FUNDS-CONSTRUCTION AMQUa'T IRLA&U TERM (Mo.) Tax-Exempt Const Loan-Bank Purchase 81622,600 6.60% 14 SO%Test: 62.7% Redevelopment Agency Loan 2,272,462 2.00% 14 County HOME/CDBG Loan 1,378,000 2.00% 14 HOPWA Loan 350,600 0.00% 14 Affordable Housing Program 229,500 0,00% 14 RDA Housing Bond Fund Grant 670,649 Costs Deferred Until Permanent Loan C 358,258 Capital Contributions General Partner 100 0.00% LIMIted Partners 984.935 0.00% %or total pay-In:20.S5% TOTAL SOURCES 14,705,904 Surplus/(Shortfall) G Const.Loan Vatuatlon Restricted NOI(prior to services) 201,969 Value at OAR 8.00% 2.624,062 Credit Value a O.eB 4.047,485 Beneficial Value of BMR Financing 31405.492 Includes MHA Total Value 10,777,839 LTV: 90.09. Max.Const.Loan Amount 8,022,20L) California Housing Partnership Corporation ......... ........_._.....11.11 ..... ....... ......... _....__.... ........._.. .......... ......... ......... ......... ......... _. _. ......... . ........ ......... IBAY POINT-APARTMENTS PAGE 1-A USES OF FUNDS -Revised: 24-Fab-03 3:30 L1SF�s_.OF 97100% 1111 1111 97.00% OEPREC1AeLE 7. 1111. TOTAL NON:. CONST/ TOTAL ALIAPIAII& DEPREC RESIDENTIAL NON•RE5 EXPENSE ACDthSrriON COSTS Land 717.840 698;111 717,840 Off-site Inrprave ua is 570,849 653,330 570,649 GENERAL DEVELOPMENT'COSTS Hard Costs-.Unit Construction 7,917,331 71977,331 O 1,917,331 0 O 7,917,331 Childcare/Cemmerclet.Space Construction 425,000 0 0 0 425,000 0 0 Construction Contingency 758,638 732,969 0 732,988 22,689 732,968 Contractor Overhead and Profit 6321489 816,514 0 578,614 16,975 578,674 Local Development Impact Fees 1,194,554 1,168,717 0 1.,138,717 35,837 - 1,758,717 Local PWInIts/Fbea 67,290 55,.271 85,271 21079.. 66,271. Phase I/Asbestos/Toxics 9,866 .9,870. 9,570 269 9;570 Bond Pramlum. .80,132 66,328 58,328 1,604 58,328 Utility Hookups 202:000 193,940 196:940 6,680 : 199,940 Architecture 6091350. 494,074 494,079 15,281 : 484.079 Survey/Enginearing 169,815 168,021 155,021 4,794 766,027 Noise Study 2,783 2,880 2,690 83 Traffic Study 10,000 6,700 9,700 300 : 9,700 Appraisal 14,000 .13,680 0 13.580 420 0 13,680 Market Study.:('CAC) .7,500 7,500 7,600 0 Construction Sup4rvision 26,000 24,250 24,280 750 : 24,250 Construction Tast7n9/Msp. 10,500 70,785 O 10,185 315 70,165 0 Soils Report 7.100 6.98.7 0 8,887 213 : 8,987 O Construction Loan Fees 101,220 981783 98,183 0 3,037 98,183 O Construction Loan Interest. 327,896: 312;239 234,176 O 87,717.. 234,179 0 Predev Loan interest/Fass(UHF) 2;875 2:788 0 21789 Be 2,799 0 Title/Recording/Eecrbw-Construction 15,000 14:850 14,660 480 14,550 0 Psnnanent Loan fees. : .10,000 10;000 50,000 Title/Recording/Escrow-Permanent 81000 4,850 51000 Rea)Estate Texas During Const : 3,991 3,871 3,871 120 O : 3,871 0 Insurance During Const 31,000 30,070 30,070 930 0 30,070 0 Security luring Const 52,418 80,844 SO,B44 1,572 O : 60,844 0 Soft Cost Contingency 35,000 33,950 33,950 1.060 : 33,950 Tuts/Racording/Escrow-Acquisition 6,373 6.1212 5,373 O 0 ICAC ApplfoatloMRea/Mon)toring.Fee 28,687 28,681 28,687 Legal: Acquisition 0 0 O 0 0 Construction.Closing 10,000 9,700 9,700 300 9.,700 0 PermanensClosing: 10,000 9.700 - 10.000 0 0rganizadonrfPtrlahp 8;000 E,D00 5,000 Syndication .20;000 20:000 20,000 Syndication Consulting 351000 35.000 18:000 0 0 Audit/Cost Certification 7,000 71000 7.000 : 0 Furnishings 26.000 24,260 24,250 750 24,260 Vacancy/flet-up :28,000 25,000 0 25,000 Capitalized Operating Reserve 138,908 139,908 138,906 Developer Fee 607,500 5811,276 589,275 19,223 : 689,276 O COSTS OF ISSUANCE/FINANCING FEES Bond Counsel 1111. 40.000 40,000 40,000 Issuer Faa .10,778 70,484 10,778 Trustee Fee 81000 B,DOO 8.000 CDLAC Fee :.3,018 2.927 :3,1778 COIAC Fee 1,724 1,871 1,724 Contingency :. 10,000 10.000_ ta.ond_ Subtotal-Financing/Costs of lesuance 71;520 7T,054 O 0 Y 0 0 79,620 O 0 LT.-. OTAL DEVELOPMENT COSTS 14,786,904 14,158,786 1,487,588 12,462,883 555,289 122,763 137,800 12,462,663 O Per Unit 289.528 WAC OEVIELOPER FEE.C. LAy N CONST. �9a. Maximum Potential TCAC Fee 1,781,011 O 1,781,011 Percent Of Total 790.00% 0.00% 100.00 Max.AllowsiNa Fee per TCAC and MHp(prorated) 607,500 O 607,500 LOSS: Broker Fee/Other Dev.Fess. 2 2 Q Not Fee(Less other developmant coats) BD7.600 0 807,600 NSL Fee Ad'shad Ill No aWs mat 807.600 0 607,600 California Housing Partnership Corporation _-_---------------__--�____� BAY POINT APARTMENT.7 PAGE 21 . ~ AvERAoE AFFORDABILITY FOR UTILITY 0 sit $0 OUALIFIED UNITS I%of Media,) o-1.1 DEDUCTIONS-� 1 go $37 4 SR so RESIDENTIAL INCOhM TAX-CREDIT ELIGIBLE-TIER 1 30%AW-HOPWA(20%SMI Un PERCENT OF TARGETED UNITS 10'0% TCAC AFFORDABILITY POINTrk 0.13 %MEDIAN PER-UNIT PER�UNFT TOTAL TOTAL PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL UNIT TYPE NVXW =9 AW AFFORDASt. 2RUE2 kEN NET NEI RE NET RENI 2 SR 1 992 992 16.3% 274 226 228 2,7D7 TOTAL 5 3,206 ogo 11 875 TAX-CREWT ELIGIBLE-TIER 2 40%STATE MEDIAN INCOME PERCENT OF TARGETED UNITS 28.0% TCAC AFFORDABILITY POINTS: 0.0 %MEDIAN PER-UNIT PIR-UNIT TOTAL TOTAL PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL UNIT TYPE NUMBER AIW Z= AFFORDADL QBOSS BEN UCLAW NET RENT NET RENI I SR 2 553 1,107 32.7% 456 Ale 838 10,056 2 OR 3 9112 2,976 32.6% 547 499 1,496 17,071 TOTAL 14 14,929 7,496 89,9641 Tkx,cRcc"'r ELIGIBLE-TIER 3 SO%AMI PERCENT OF TARGETED UNITS 10.0% TCAC AFFORDABILITY pOINTS� oz %MEDIAN PER-UNtT PER-UNIT TOTAL TOTAL PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL 1 OR 1 653 563 50.0% ass Sal 7,932 2 OR 1 292 992 5010% 838 790 790 9,420 3 OR 3 1205 3.616 80.0% Sao 009 2,727 32,724 TOTAL 6 4,178 _59�13 TAX-CRWIT ELIGIBLE-TIER 5 Go%AMI PERCENT OF TARGETED UNITS 62.0% TCAC AFfORDABILITY POINTS: 0.0 %MEDIAN PER-UNIT PER-UNIT TOTAL, ii-YFA-L PER UNIT TOTAL 114COME MONTHLY MONTHLY MONT14LY ANNUAL UNIT T Numpf. so FT IT AFFORDASL mssNET RENT NET RE NET RENJ 1 BR 5 $53 2,797 Som% a3S 801 4,003 48,036 2 SR 2 992 11284 80.0% 11008 gas 1,218 22,982 3 OR 19 1,206 22,809 60.0% 1,182 1:103 20,940 291,393 TOTAL 26 27,649 26's NON�TAX CREDIT ELIGIBLE %MEDIAN PER-UMT PER-UNiT TOTAL TOTAL PER UNIT TOTAL INCCME MONTHLY MONT14LY MONTHLY ANNUAL %MEDIAN PER.UNFT PER-UNIT TOTAL TOTAL PER UNIT TOTAL INCOME MONTHLY MONTHLY MONTHLY ANNUAL UNIT TYP NUMBER =u SO FT AEEQRDAKLE GROSS RENT NET BE NET RENT NLT-= TOTAL 1 992 - TOTAL TOTAL TOTAL TOTAL RESIDENTIAL INCOME UNITS 0.0 al 39,531 474,377 TOTAL So FT-TAX CREDIT ELIGIBLE 23,206 TOTAL SO FT-NON-TAX CREDIT ELIGIBLE 2. ----- -- -vf�POINTS: TOTAL RENTABLE S FT 23— PER-UNIT TOTAL TOTA MONTHLY MONTH 2.45 12S 11500 COMMERCIAL IN OME California Housing Partnership Corporation _ � . � BAY POINT APARTMENTS PAGE 3 CALCULATION OF WAX CREDITS Vorsttm:Revised: 2/24/03 Revised: 24-Feb-0 FEDERAL CALIFORNIA CONST/ CONST/ gcDUls REBA ACOurs &ELiB& TOTAL ELIGIBLE COSTS 0 12,482,683 12,482,8E 0 0 0 Less: Historic Tax Credit(Res.Portion) 0 0 0 0 D 0 Non-Eligible(federal/Grant Financing): D O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O 0 0 0 0 ELIGIBLE BASIS 0 12.4E2,Ba3 12.462.883 0 0 0 REQUESTED ELIGIBLE BASIS 0 12,482,883 12.462.883 '0 0 0 HIGH COST ADJUSTMENT :Y or N Y 10010% 130.0%__0.0% 100.0% 100.0% ADJUSTED ELIGIBLE BASIS 0 16,201,488 18,201,488 0.. 0 0 APPLICABLE FRACTION" 100.0% 100.0% 100.0% 100.0% QUALIFIED CREDIT BASIS O 16,201,488 16,201,481 0 -...0. 0 REQUESTED QUALIFIED BASIS(for Leveraging Points) 100.0% 100.0% -100.0% : 100.0% %REDUCTION: 0.00% 0 16.201.488 16.201,489 0 0 0 CREDIT RATE(ICAC UNDERWRITING) State-Tot4l 13.00'%. 30.00% Federal:Annual/Yr 1.3 Ste to 3.50% 3.50% 3.40% 3.40% Year 4-Stat 1 2.80% 2.80% MAX.POTENTIAL FEDERAL CREDIT(No TSL/Actual Rate) - Credit Rates 3.40% 3.40% Potential Credit 0 SS0,851 650,65 MAX.CREDIT AMOUNT PER TCAC UNDERWRITING Federal Annual/Yr 1Sta O 567,052 567,06 ©_ 0 0 Yr 2 Stat 0 - 0 _ Yr 3 Stat : 0 0 Yr 4 Stat 2. #z_ Q Tota -0 0 ACTUAL TCAC CREDIT RESERVATION Federal Annusl/Total Ste Le NIA N/A N/A N/A N/A N/A MAXIMUM ALLOWABLE CREDITS(Lesser of above) federal Annual/Total Ste to O 550,851 550,85 0 MAXIMUM.ALLOWABLE-TEN YEAR TOTAL 5;506,50 0 TOTAL STATE>FEDERAL LIHTC:AMOUNTS-10 YEARS Total federal r State 5,606,506 General Partner Share 0.1% 51508 Limited Partner Share 98.8% : S,502,997 HISTORIC CREDIT CALCULATION _ 'APPLICABLE FRACTION Number of Total Total Depreciable Basis 12,452,883 Units .fraction Sq Ft Fractlor less: Acquisition Basis 570,645 less: Personal Property 2. Tax Credit 50 100.0000% 23,295 100.0000 Basis for Historic Credit 11,892,034 Nan-Tax Credit El 0 0.0000% 0 0.0000 Credit Percentage QM TOTAL 50 100.6000% 23.285 100.0000 Total Historic Credit 0 Res.Portion of Historic Credit 0 APPLICABLE FRACTION (Lesser of Low Income Units or Sg ft% 100.0000% California Housing Partnership Corporation .............................................. ............................................ ............................................ ................... BAY T.......INT APARTMENTS AGE 4 BASE YE, R INCOME/OPERATING EXPENSE STATEMENT Revised: 2/24/03 Revised; 24-Feb-0 INCOME: Scheduled Gross Income-Residential 474,377 Scheduled Gross Income-Commercial 3,600 Section a PBA(incremental Income) 0 Misc. Income 1,500 Vacancy Loss-Residential 5.0% (23,794, Vacancy Loss-Section 8 5.0% 0 Vacancy Loss-Commercial 25.0% (900) EFFECTIVE GROSS INCOME 455,683 EXPENSES- RESIDENTIAL Administrative Advertising 750 Legal 3,500 Accounting/Audit 12,090 Security 3,600 M-.'BC. Admin 10.10 Total Administrative 30,140 Management Fee 30,600 Utilities Fuel 0 Electricity 13,000 Gas 9,000 0 Total Utilities 22,00( Water/Sewer 15, Payroll/Payroll Taxes On-Site Manager/Maintenance Payroll 39,520 Manager Unit Expense/(Credit) 0 Payroll Taxes 17,40 Total Payroll/Payroll Taxes 56,924 Insurance 25,20C Real Estate Taxes 19,08C Maintenance Painting 2,800 Repairs 5,000 Trash Removal 15,000 Exterminating 3,000 Grounds 5,000 Elevator 0 cleaning/maint Supplies 3,55 Total Maintenance 34,350 Replacement Reserve 20,400 Other Services Coordinator 10,000 Operating Reserve 0 0 Total Other 10,00C TOTAL EXPENSES-RESIDENTIAL 263,694 Per Unit Per Month(incl.Reserves) 5,170 Per Unit Per Month(w/o taxes/res/s, 4,200 TCAC Minimum (w/o taxes/res/sve) 3,200 TOTAL EXPENSES-COMMERCIAL 0 NET AVAILABLE INCOME 191,9B9 Less; 14CD Mandatory Interest Payment 13.027 ADJUSTED NET AVAILABLE INCOME: TOTAL 178.962 r ADJUSTED NET AVAILABLE INCOME; NET OF SECT 8 178,9.2 B Debt Service Coverage Ratio 1.11 I 55,619 AVAILABLE FOR DEBT SERVICE 1 California Housing Partnership Corporation ............... ............ ........ ................. BAY POINT APARTMEl`w+I'TS PAGE 4-A Mortgage Calculation/Bond Ratios Revised: 24-Feb-0 LOAN 1 Financing TypeTax-Exempt Bonds; Bank Purchase Underwriting Maxinmm Cons ait}t Loan Amount Debt Service Coverage 1.15 2,071,100 Loan-to-Value 85.0% 7,328,870 Percent of Transaction Costs 100.0% 14;765,904 Statutory Limit 61806,519 Lender Commitment NA MAXIMUM MORTGAGE 2,071,100 LOAN CONSTANT/TIC CALCULATION FHA/CONY. SERIES A SERIES B Bond/Loan Mate 8.00000 6.25000 0.00000 Term (Yr) 3O,OC 30.00 10.00 Mortgage Insurance Premum 0.0000 0.00000 0.00 GNMA/Servlcing 0.00000 0.000001 , 0.00000 Annual Issuer Fee 0.000005 0.12500 0.00000 Other Annual Bora!Fees 0.000 0.00000 0.00000 Amort (P&I) 7 1.1386 10,099 Loan Constant 8.80517 7.51361 10.00000 Im ted Tota#interest Cost TIC 8.013[KJ 6.40953 0.00000 BOND/REHABILITATION RATIOS Tax-Ex Financi Ratio Series A Bonds 0 Series B Bonds 0 Tax-Exempt construction Loan 8,522,0 Tax-Exempt Bridge Loan 0 TOTAL TAX-EXEMPT FINANCING 8,622,00 TOTAL BASIS ALLOCATION 13,756,34 Percent Tax-Exempt Financing 62.68'/0 California Housing Partnership Corporation ............................................. ........................................... .................................................. BAY POINT APARTMENTS PAGE 6 Cakulation of Net Syndication Procee& Version:Revised: 2/24/03 Revised: 24-Feb-O� CALCULATtON OF SYNDICATION COSTS Total Federal Credit (10 yr) & State Credit 5,508,506 Gross Proceeds (Total) 4,792,400 Gross Proceeds (net of bridge int/fees) 4,792,400 19—ss Comments Upper Tier Costs Attorney 25,000 Accountant 7,000 Consulting 35,000 Broker Bridge Loan Fee 0 Syndicator 0 Other Total Synfflcatlon Costs 87,000 Total Syndication Costs/Gross Proceeds 0.01 % (Syndication Load) Net Proceeds 4,725,400 Net Proceeds/Total Fed and State Credit 0.85784 tax credit factor Gross Proceeds(Total)/Total Fed and State Credit 0.87000 tax credit factor Gross Proceeds (w/o Bridge)/Total Fed and State Credit 0.87000 tax credit factor California Housing Partnership Corporation ............................. .................................... ---—------------ BAY POIN' APAMENTS PAGE 7 TCAC Basis Limit Calculation Version: Revised: 2/24/03 Revised: 24•Feb»0 County: Contra Cost 221 d 3 Multi Ilan, o 2,0 Elevator(Y/N) _ N Special Feature(Y/N) Y Special Feature Percent 112.0 S ectal Features: Prev wa 221 d 3 BASE LIMITS TCAC BASIS LIMIT FOR THIS PR94ECT Per Unit Per Unit TOTAL TOTAL TCAC Basis TCAC Basis without with Unit [ Elelator Noll-,F3;Pvator Uaft TxR No.of Units -4Q 2 Gni Feat w/Sic)by .uct.Feat. S .F e 0 BR 44,250 42,0412 0 8R 0 84,937 95,129 0 0 1 8R 50,724 48,481 1 OR 12 97,932 109,683 1,175.179 1,316,20- 2 OR 61,680 58,46S 2 OR 8 118,107 132,280 944,859 1,058,24 3 OR 79,7193 74,B4 3 OR 31 151,177 169,318 4,686,481 5;248,85 4 BR B7,S88 83,37 4 OR Q 168,418 188,628 Q Q 51 6 808;519 7,623,3 BASIS CALCULATION 221(d)(3)basis Limit 61806,519 Plus: Special Features Boost 12.00% 816,782 Plus: Local Development impact Fees 1,194,554 Plus: Title 24/Energy Star 4,0% 272,261 Plus: Additional Boost for TAX-Exempt Bonds 60.0% 4&&3,91 TCAC THRESHOLD BASIS LIMIT 13,174,0+28 Potential Eligible Basis 12,462,683 Surplus/ Deficit 711,34S California Mousing Partnership Corporation ................................................ ............................. g y O !81� 0 0 0 0 00 .0o:!om N lihflYNN O m0 � N,M") � � a0{ m N M O W aCd art m m Y N. .... NbtlYBNE Om ' O00 �0 DO 1 �•-]k a ��"11 ' ' N O m N O O goo 0 0 oo 0 0 Ot C; coo lo 00 cs It o c 0 go o 00 0 0 0 ry0m m N 000 O m oo Iq at 0 coo go Y 00 000 §0 at 0 a OO o 0 coo 0 cc 0 1 1 coo o o o rryQQ �m Nay Y0� N Oh{ m mOO�OH� N 000 �O 00 0 0 0 00 0. M 00 O 11 ti t4 '0 ME ...................................... ............ ........... w u N m h affiIC. * �thM1w'N M Yi t0 W Nr p0pd �M r p. M 0� p O �W NN M Cl°YS h N !Np p i Iw9 �p W fM Y 4 C N C N fi N r M h h w N N $$r N r h [�9wa b 0bp p IDp yNjaY A41+0 a {{t{t yp YNp N i N N Np N wN N r h r Cl 01. M Cl d 'P p N M p N N M N r M PW PwN r W r Humoam t{(ry ro � a Wwn 1M0 mC ry W N W M W N N N r Y! ffi451 ffi�00 p9 YM1 +ta N a� A�0a W ffi W O p n N M p ffi �h CI CI W'Oi n ffi N NtOV ra ry f �pN„ffi OppO N m°NpY W©�.°ffi� W h M W ffi ffi N W W f q M b N a N N a 6 M N N W H h W W w N F* N N N N r N r O M M N Y W p Y W m M r� C1 W w.MGa0� m namp+A m�rO m �}` fi#511 ffi b M H�Cl 8 m h C A N h N 1+W ICM N W N N r N r pw pp G EIt{aW1 Wm n4pC8bOp f{F -0pbd Pqa m N lmO N Y WF 0Nm a N Ir m�90p p �� ^�O Nps N'prptl F 11{N Ni�C N h 1� N Ow 1C 1[m N h QC N }• U a 1ti F h 81h N '8 W Q1 f N W W CFMN M pr N r O W NNMN `� y w h W y My aOpp e pa 1C°18 +CpCwl°ffi ... $NY11µµ1 vt O C h h MYffi Y 'N ffi M N M 6 p� tdftl}5N pCby pr p"p{p}a�ry Mac p tppV �N N 511 Y1 W N N {4���f O!wp .0 r 0. ffiffi W imC tpYN m t u1 M N C1 pp W pO W W N a o00pF 000100 ffigr b N M w O W N N Iff yp w q 9pr W w w n N pffip N W Ww w N ffi i � 8003 ^0220,; Mot NY N Y W N N N O NW Mot m C»p N M fiat W N NIaV r W pww MN N N r A M G O NION um,Oa pi°„ r W ah°Y f6Y b C1 Sri{4yy N w {., �Na9 Cf'r r w 0 A N M Y N N w N N p M w M N W G NNr m t'Nta[Q5040Fl IAC pW C, 0 W O$btl 1}[ W N pVp b CY N CI N V CI } W r Y W N n Yt w w w O M M N w N N r W {{ I � V200 b &0000a OOOOC b G OgaN h m C! rh WrNN �O n rWi O NNJM N NNr m z F 9� EXHIBIT C-2 Financing Proposal (Single Family Improvements) 320\07\161927.7 C-2-1 EXHIBIT D-1 Development Schedule (Apartment Improvements) 320\07\161927.7 D-1-1 __. ... ._. ... ...._._. . _.... _........ ......... ......... ._....... .................. Bay View Community Development Partnership Resources for Community Development and The O'Brien Group MULTI-FAMILY PROJECT TIMELINE Current as of February 12, 2003 Task Start Complete Comments RDA Board Selection 25-Jun-02 25-Jun-02 Prepare Schematic Drawings 15-Sep-02 15-Dec-02 Submit HOME/CDBG funding application 24-Sep-02 3-Dec-02 Conditional Approval of $1,378,000 Submit Planning Applications 1-Nov-02 10-Mar-03 Prepare Design Development Drawings 1-Jan-03 1-Mar-03 Meet with PAC&MAC 8-Jan-03 8-Jan-03 Traffic Study 14-Jan-03 13-Feb-03 Negotiate and Finalize DDA and RDA loan 23-Jan-03 25-Feb-03 Obtain Conventional Financing Commitments 1-Feb-03 14-Mar-03 (Construction and Permanent) Initiate Contractor Bid/Negotiation 4-Feb-03 1-Jul-03 Submit Tentative Map 10-Feb-03 15-Feb-03 HOPWA Application I-Mar-03 I-May-03 Obtain Planning&Tentative Map Approvals 10-Mar-03 10-Mar-03 DDA and RDA loan hearing before Board of 11-Mar-03 11-Mar-03 Supervisors County Acquires All Project Parcels 11-Mar-03 11-Mar-03 Prepare Construction Documents 21-Mar-03 I-Sep-03 AHP Application 1-Apr-03 15-Jun-03 Submit Building Permit 15-Jan-03 1-Oct-03 Submit CDLAC Application 16-Jul-03 24-Sep-03 Submit 4%Application to TCAC 24-Sep-03 1-Dec-03 -._....................................................................................................... Bay View Community Development Partnership Resources for Community Development and The O'Brien Group MULTI-FAMILY PROJECT TIMELINE Current as of February 12, 2003 Task Start Complete Comments Begin Site Preparation 1-Sep-03 1-Nov-03 Signed Construction Contract 1-Oct-03 1-Oct-03 Close on Contruction Loans 7-Oct-03 7-Oct-03 Begin Construction of MF Units 1-Dec-03 1-Feb-05 Develop Management Plan for MF Units 1-Mar-03 1-May-03 Begin Leaseup/Marketing of MF Units 1-,Tun-04 1-Apr-05 Finish Construction of MF Units 1-Feb-05 1-Feb-05 Leaseup/Occupancy of MF Units 1-Feb-05 1-Apr-05 Close on Permanent Loans 1-Jun-05 1-Jun-05 EXHIBIT D-2 Development Schedule (Single Family improvements) 320\07\161927.7 D-2_1 Schedule of Performance Resources far Community Development and The O'Brien Group SINGLE FAMILY PROJECT TIMELINE Current as of February 26, 2003 Task Start Complete Comments RDA Board Selection 25-Jun-02 25-Jun-02 Prepare Schematic Drawings 15-Sep-02 15-Dec-02 Submit Planning Applications 1-Nov-02 10-Mar-03 Prepare Design Development Drawings i-Jan-03 1-Mar-03 Meet with PAC&MAC 8-Jan-03 8-Jan-03 Traffic Study 14-Jan-03 13-Feb-03 Negotiate and Finalize DDA 23-Jan-03 25-Feb-03 Initiate Sub-Contractor Bid/Negotiation 4-Feb-03 1-Jul-03 Submit Tentative Map 10-Feb-03 15-Feb-03 Obtain Planning&Tentative Map Approvals 10-Mar-03 10-Mar-03 DDA and RDA loan hearing before Board of i i-Mar-03 11-Mar-03 Supervisors County Acquires All Project Parcels I I-Mar-03 i 1-Mar-03 Prepare Construction Documents 21-Mar-03 I-Oct-03 Submit Building Permit Application 15-Jun-03 1-Oct-03 Begin Site Preparation 1-Oct-03 1-Jan-04 Signed Construction Contract 1-Jan-04 1-Jan-04 Close on Contruction Loans 1-Jan-04 1-Jan-04 Begin Construction of SF Units I-Jan-04 1-Jan-07 (36 months) Begin Marketing of SF Units 1-Jun-04 1-Jan-07 Finish Construction of SF Units 1-Jan-07 1-Jan-07 Complete Sale of SF Units 1-Jan-07 I-Jan-07 EXHIBIT E-I Final Development Plan (Apartment Improvements) 324\07\181827.7 E-1 ...........11.1. .. .. .........._.........._... _.. _._. _......_. ......... ................. ......... ....._.. . __.................................. EXHIBIT E-2 Final Development Plan (Single Family Improvements) 320\071161927.7 E-1 Exhibit F-1 Form of Grant Deed(Apartment Site) RECORDING REQUESTED BY AND VTHEN RECORDED MAIL TO: Contra Costa County Redevelopment Agency 651 Pine Street,N. Wing, 4th Floor Martinez,CA: 94553 Attention. Redevelopment Director No fee for recording pursuant to Government Cade Section 27383 GRANT DEED For valuableansti COSTA COUNTY REDEVELOPMENT AGENCY, a pub-Iic body corporatt—e a nti p"`-oMi fc,the State of California("Grantor"),acting to carry out redevelopment purposes pursuant to the Community Redevelopment Law of the State of California,hereby grants to Resources for Community Development,a California nonprofit public benefit corporation("Grantee"),the real property(the "Property") described in Exhibit A attached hereto and incorporated in this Grant Deed by this reference. I. The Property is conveyed subject to the Disposition, Development and Loan Agreement(as amended from time to time, the "Agreement")by and between Grantor, Resources for Community Development and The O'Brian Group, executed as of March,2003. 2. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that the Grantee and such successors and assigns shall promptly begin and diligently prosecute to completion the redevelopment of the Property through the construction of the improvements required to be constructed pursuant to the Agreement(the "Apartment Improvements"), and that such construction shall be commenced and completed'within the times provided in the Agreement. Promptly after completion of the Apartment Improvements on the Property in accordance with the provisions of the Agreement,the Grantor shall furnish the grantee with appropriate instrument so certifying(a"Certificate of Completion"). Such Certificate of Completion by the Grantor shall be a conclusive determination of satisfaction and termination of the agreements and covenants in the Agreement and in this Grant Deed with respect to certain of the obligations of 320\07\166341,1 217!03 _ _.. .. ..._.._................ .............. .._...... the Grantee and its successors and assigns to construct the Apartment Improvements and the dates for the beginning and completion of such construction. 3. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that during construction and thereafter, the Grantee shall devote the Property only to the uses permitted by the Agreement. 4. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that during construction and thereafter,the Grantee or its successors and assigns shall operate and maintain the Property and Apartment Improvements thereon in compliance with all requirements for operation and maintenance set forth in the Agreement. 5. The Grantee covenants and agrees, for itself and its successors and assigns,that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed,religion, sex, sexual orientation,marital status,national origin, ancestry or disability in the sale,lease, sublease, transfer, use,occupancy, tenure or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number,use or occupancy of tenants, lessees, subtenants,sublessees or vendees in the Property and the Improvements thereon. All deeds,leases or contracts made relative to the Property and the Improvements thereon or any part.thereof, shall contain or be subject to substantially the following non-discrimination clauses a. In deeds: "The grantee herein covenants by and for itself, its heirs; executors, administrators,and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation,marital status,national origin, ancestry or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed,norshall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall ran with the land." b. In leases: "The lessee herein covenants by and for itself, its heirs,executors, administrators and assigns, and all persons claiming under or through the Grantee, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed,religion, sex, sexual orientation, marital status,national origin, ancestry, or disability in the leasing, subleasing, transferring,use,occupancy, tenure or enjoyment of the land herein leased,nor shall the lessee, or any person claiming under or through the lessee, establish or permit any such practice or practices of discrimination or segregation with 320107\166341..1 217/03 reference to the selection,location, number, use or occupancy of tenants,lessees, subtenants or vendees in the land herein leased.." C. In contracts; "There shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed,religion, sex, sexual orientation,marital status,national origin, ancestry or disability in the sale,lease, sublease,transfer,use, occupancy,tenure or enjoyment of the land,nor shall the transferee, or any person claiming under or through the transferee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection,location,number,use or occupancy Of tenants, lessees, subtenants or vendees in the land." 6. The Grantee represents and agrees that the Property will be used for the purposes of timely redevelopment as set forth in the Agreement and not for speculation in landholding. The Grantee further recognizes that in view of the following factors,the qualifications of the Grantee are of particular concern to the community and the Grantor: a. The importance of the redevelopment of the Property to the general welfare of the community; and b. The land acquisition assistance and other public aids that have been made available by law and by the government for the purpose of making such redevelopment possible; and — -r upon the unique qualifications and ability of the Grantee to serve as the catalyst for development of the Property and upon the continuing interest which the Grantee will have in the Property to assure the quality of the use, operation and maintenance deemed critical by the grantor in the development of the Property; and d. The fact that a change in ownership or control of the owner of the Property,or of a substantial part thereof, or any other act or transaction involving or resulting in a significant change in ownership or with respect to the identity of the parties in control of the Grantee or the degree thereof is for practical purposes a transfer or disposition of the Property; and e. The fact that the Property is not to be acquired or used for speculation,but only for development and operation by the Partnership in accordance with the:Agreement; and f. The importance to the Grantor and the community of the standards of use, operation and maintenance of the Property. The Grantee further recognizes that it is because of such qualifications and identity that the Grantor has entered into the Agreement and has conveyed the Property to the Grantee. For the reasons stated above,the Grantee covenants, for itself and its successors and assigns, that there shall be no sale, transfer, assignment, conveyance, lease,pledge or encumbrance of the Agreement, or the Property and the Apartment Improvements thereon or any part thereof, or of other ownership interest in the Grantee in violation of the Agreement. 32M071166341.1 2/7/43 No voluntary or involuntary successor in interest of the Grantee shall acquire any rights or powers under this Grant Deed or the Agreement except as expressly set forth in this Grant Deed or the Agreement. 7. The covenants contained in Sections 2, 3,4, and 6 regarding construction, use, operation and maintenance,and transfers of interests, shall remain in effect for the Term of the Agreement(as defined in the Agreement). The covenants contained in Section 5 regarding non- discrimination shall remain in effect in perpetuity. 8. No violation or breach of covenants, conditions, restrictions,provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by the Agreement or otherwise approved by the Agency;provided,however, that any successor of Grantee to the Property shall be bound by such covenants, conditions,restrictions, limitations and provisions,whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure,trustee's sale or otherwise. 9. The covenants contained in Sections 2, 3, 4, 5 and 6 of this Grant Deed shall, without regard to technical classification or designation, legal or otherwise specifically provided in this Grant Deed,be,to the fullest extent permitted by law and equity,binding for the benefit and in favor of and enforceable by the Grantor, its successors and assigns,the County of Contra Costa and any successor in interest to the Property or any part thereof,and such covenants shall run in favor of the Grantor and such aforementioned parties for the entire period during which - -- ---such esvenants shall be in force and effect, without regard to whether the Grantor is or remains --- r-irrterest-therein to which such covenants relate.. In the event of any breach of any of such covenants,the Grantor and such aforementioned parties shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other property proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor, its successors and such aforementioned parties. 10. Subject to and in accordance with the procedures and provisions of Section 8.5 and 8.11 of the Agreement,the Grantor shall have the right, at its option,to reenter and take possession of the Property hereby conveyed, or such portion thereof, with all Apartment Improvements thereon, and revert in the Grantor the estate conveyed to the Grantee, if the Agreement is terminated with respect to the Grantee pursuant to Section 8.4 of the Agreement prior to recordation of a Certificate of Completion for the Apartment Improvements. The Grantor shall have the right to institute such actions or proceedings as it may deem desirable for effectuating the purposes of this Section, including also the right to execute and record or file with the Recorder of the County of Contra Costa a written declaration of the termination of all rights and title of the Grantee, and its successors in interest and assigns, in the Property, and the reverting of title thereto in the Grantor. Any delay by the Grantor in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Section shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way{it being the intent of this provision that Grantor should not be constrained so as to avoid the risk of being deprived of or limited to the exercise of the remedy provided in this Section because of 320\07\166341.1 2!7!03 «. concepts of waiver,laches, or others),nor shall any waiver in fact made by the Grantor with respect to any specific default by the Grantee, its successors and assigns,be considered or treated as a waiver of the rights of the Grantor with respect to any other defaults by the Grantee, its successors and assigns, or with respect to the particular default except to the extent specifically waived. 11. Only the Grantor, its successors and assigns, and the Grantee and the successors and assigns of the Grantee in and to all or any part of the fee title to the Property shall have the rights to consent and agree to changes or to eliminate in whole or in part any of the covenants contained in this Grant Deed or,prior to the issuance of a Certificate of Completion for the Apartment Improvements,to subject the Property to additional covenants, easements, or other restrictions. For purposes of this Section, successors and assigns of the Grantee shall be defined to include only those parties who hold all or any part of the Property in fee title, and not to include a tenant, lessee, easement holder, licensee,mortgagee, trustee,beneficiary under deed of trust, or any other person or entity having an interest less than a fee in the Property. 12. In the event there is a conflict between the provisions of this Grant Deed and the Agreement,it is the intent of the parties hereto and their successors in interest that the Agreement shall control. This Grant Deed may be executed and recorded in two or more counterparts, each of which shall be considered for all purposes a fully binding agreement between the parties. IN WITNESS WHEREOF, the pat-ties hereto have executed this Grant Deed in triplicate as of this_.__day of , 20— GRANTEE: GRANTOR: Resources for Cornrnunity Development, a Contra Costa County Redevelopment California nonprofit public benefit corporation Agency, a public body, corporate and Politic By: By: Its: Its: 320\071166341.1 217103 Exhibit F-2 Form of Grant Deed(Single Family Site) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Contra Costa County Redevelopment Agency 651 Pine Street,N. Wing, 4th Floor Martinez, CA 94553 Attention: Redevelopment Director No fee for recording pursuant to Government Code Section 27383 GRANT DEED For valuable consideration, the receipt of which is hereby acknowledged, THE'CONTRA COSTA COUNTY REDEVELOPMENT AGENCY, a public body, corporate and politic, purposes pursuant to the Community Re&v6l6pmerifUa—u%6`ft a e o r 5 ua, ere y grants to The O'Brien.Group, a California.corporation("Grantee"), the real property(the "Property")described in Exhibit A attached hereto and incorporated in this Grant Deed by this reference. 1. The Property is conveyed subject to the Disposition,Development and Loan Agreement by and between Grantor,Resources for Community Development and The O'Brien Group, executed as of March—,2003 (as amended from time to time, the "Agreement"). 2. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that the Grantee and such successors and assigns shall promptly begin and diligently prosecute to completion the redevelopment of the Property through the construction of the irnprovelnents required to be constructed pursuant to the Agreement(the"Single Family Improvements"), and that such construction shall be commenced and completed within the tunes provided in the Agreement. Promptly after completion of each of the units and the common area of the Townhome Improvements in accordance with the provisions of the Agreement, the Grantor will furnish the Grantee with an appropriate instrument so certifying(a"Certificate of Completion"). Such Certificate of Completion by the Grantor shall be a conclusive determination of satisfaction and termination of the agreements and covenants in the Agreement and in this Grant teed with respect to the obligations of the Grantee and its successors and assigns to construct the portion of 320107\166406.1 2110703 ..............-........... ....... the Townhome Improvements described in the Certificate of Completion and the dates for the beginning and completion of such construction. 3. The Grantee hereby covenants and agrees, for itself and its successors and assigns, that during construction and thereafter, the Grantee or its successors and assigns shall maintain the Property and Single Family Improvements thereon in compliance with all requirements for maintenance set forth in the Agreement. 4. The Grantee covenants and agrees, for itself and its successors and assigns, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed,religion, sex, sexual orientation,marital status, national origin, ancestry or disability in the sale, lease, sublease,transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number,use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property and the Improvements thereon. All deeds, leases or contracts made relative to the Property and the Improvements thereon or any part thereof, shall contain or be subject to substantially the following non-discrimination clauses: a. In deeds: "The grantee herein covenants by and for itself, its heirs, executors, administrators,.and assigns, and all persons claiming under or t 1-I-XI gb- Tn t ."w4mination-against or segregation -of, any person 6_r g f,_6_u—p6T e sons oriaccount of-race, color, creed, religion, sex, sexual orientation,marital status, national origin,ancestry or disability in the sale,lease, sublease,transfer,use,occupancy,tenure or enjoyment of the land herein conveyed,nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy of tenants,lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. In leases: "The lessee herein covenants by and for itself, its heirs, executors, a(hninistrators and assigns, and all persons claiming under or through the Grantee, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed,religion, sex, sexual orientation, marital status,national origin, ancestry,or disability in the leasing, subleasing,transferring,use, occupancy,tenure or enjoyment of the land herein leased,nor shall the lessee, or any person claiming under or through the lessee, establish or pen-nit any such practice or practices of discrimination or segregation with reference to the selection, 3201071166406.1 2110/03 location, number, use or occupancy of tenants, lessees, subtenants or vendees in the land herein leased." C. In contracts: "There shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation,marital status,national origin, ancestry or disability in the sale, lease, sublease,transfer,use, occupancy, tenure or enjoyment of the land,nor shall the transferee, or any person claiming under or through the transferee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,number,use or occupancy of tenants,lessees, subtenants or vendees in the land." 5. The Grantee represents and agrees that the Property will be used for the purposes of timely redevelopment as set forth in the Agreement and not for speculation in landholding. The Grantee further recognizes that in view of the following factors,the qualifications of the Grantee are of particular concern to the community and the Grantor: a. The importance of the redevelopment of the Property to the general welfare of the community; and b. The land acquisition assistance and other public aids that have been made available by law and by the government for the purpose of making such redevelopment possible; C. The reliance by the Grantor upon the unique qualifications and ability of the Grantee to serve as the catalyst for development of the Property and upon the continuing interest which the Grantee will have in the Property to assure the quality of the use, operation and maintenance deemed critical by the Grantor in the development of the Property; and d. The fact that a change in ownership or control of the owner of the Property,or of a substantial part thereof,or any other act or transaction involving or resulting in a significant change in ownership or with respect to the identity of the parties in control of the Grantee or the degree thereof is for practical purposes a transfer or disposition of the Property; and e. The fact that the Property is not to be acquired or used for speculation,but only for development and operation by the Partnership in accordance with the Agreement; and f. The importance to the Grantor and the community of the standards of use, operation and maintenance of the Property. The Grantee finther recognizes that it is because of such qualifications and identity that the Grantor has entered into the.Agreement and has conveyed the Property to the Grantee. 32010'1166406.1 2110103 ............................................ For the reasons stated above,the Grantee covenants, for itself and its successors and assigns,that there shall be no sale, transfer, assignment, conveyance,lease,pledge or encumbrance of the Agreement, or the Property and the Single Family Improvements thereon or any part thereof, or of other ownership interest in the Grantee in violation of the Agreement. No voluntary or involuntary successor in interest of the Grantee shall acquire any rights or powers under this Grant Deed or the Agreement except as expressly set forth in this Grant Deed or the Agreement. 6. The covenants contained in Sections 2,3, and 5 regarding construction, maintenance, and transfers of interests,shall remain in effect for the Term of the Agreement(as defined in the Agreement). The covenants contained in Section 4 regarding non-discrimination shall remain in effect in perpetuity. 7. No violation or breach of the covenants,conditions,restrictions,provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage,deed of trust or other financing or security instrument permitted by the Agreement or otherwise approved by the Agency; provided,however, that any successor of Grantee to the Property shall be bound by such covenants, conditions,restrictions, limitations and provisions,whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure,trustee's sale or otherwise. 8. The covenants contained in Sections 2,3, 4 and 5 of this Grant Deed shall, ttassfication or designation, legal or otherwise specifically provided - 1us rarit I eer -be, to the fu-llestextent permitted by law and equity,binding for the benefit and in favor of and enforceable by the Grantor, its successors and assigns, the County of Contra Costa and any successor in interest to the Property or any part thereof,and such covenants shall run in favor of the Grantor and such aforementioned parties for the entire period during which such covenants shall be in force and effect,without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. In the event of any breach of any of such covenants, the Grantor and such aforementioned parties shall have the right to exercise all of the rights and remedies,and to maintain any actions at law or suits in equity or other property proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor,its successors and such aforementioned parties. ' 9. Subject to and in accordance with the procedures and provisions of Section 8.5 and 8.11 of the Agreement,the Grantor shall have the right, at its option, to reenter and take possession of the Property hereby conveyed, or such portion thereof,with all Single Family Improvements thereon, and revert in the Grantor the estate conveyed to the Grantee, if the Agreement is tenninated with respect to the Grantee pursuant to Section 8.4 of the Agreement prior to recordation of a Certificate of Completion for the Townhome Improvements. The Grantor shall have the right to institute such actions or proceedings as it may deem desirable for effectuating the purposes of this Section, including also the right to execute and record or file with the Recorder of the County of Contra Costa a written declaration of the 3201071166406.1 2/10103 termination of all rights and title of the Grantee, and its successors in interest and assigns,in the Property, and the reverting of title thereto in the Granter. Any delay by the Grantor in instituting or prosecuting any such actions or proceedings or otherwise asserting its rights under this Section shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way(it being the intent of this provision.that Grantor should not be constrained so as to avoid the risk of being deprived of or limited to the exercise of the remedy provided in this Section because of concepts of waiver, laches,or others),nor shall any waiver in fact made by the Grantor with respect to any specific default by the Grantee,its successors and assigns,be considered or treated as a waiver of the rights of the Grantor with respect to any other defaults by the Grantee, its successors and assigns, or with respect to the particular default except to the extent specifically waived.. 10. Only the Grantor, its successors and assigns, and the Grantee and the successors and assigns of the Grantee in and to all or any part of the fee title to the Property shall have the rights to consent and agree to changes or to eliminate in whole or in part any of the covenants contained in this Grant Decd or,prior to the issuance of a Certificate of Completion,to subject the Property to additional covenants, easements,or other restrictions. For purposes of this Section, successors and assigns of the Grantee shall be defined to include only those parties who hold all or any part of the Property in fee title, and not to include a tenant, lessee, easement holder, licensee, mortgagee, trustee,beneficiary under deed of trust,or any other person or entity having an interest less than a fee in the Property. In the event there is a conflict between the provisions of this Grant Deed and the Agreement, it is the intent of the parties hereto and their successors in interest-that-the-. . Agreement shall control, 11. This Grant Deed may be executed and recorded in two or more counterparts, each of which shall be considered for all purposes a fully binding agreement between the parties. 320107\166406.1 2110/03 IN WITNESS WHEREOF,the parties hereto have executed this Grant Deed in triplicate as of this ,20 . GRANTEE: GRANTOR: The O'Brien Group, a California Contra Costa County corporation Redevelopment Agency, a public By: body, corporate and politic By: Its: Its: 320\07\166406.1 2110/03 Exhibit G Foran of Agency Note Agency Loan Promissory Note (Bay View Community) $2,622,462 Martinez, California March , 2003 FOR VALUE RECEIVED,Resources for Community Development, a'California nonprofit public benefit corporation,or its successor or assign approved by the Agency(the "Developer"),promises to pay to the Contra Costa County Redevelopment Agency(the "Agency"), or order,the principal sum ofup to Two Million Six Hundred.Twenty Two Thousand Four FIundred l. I3iosition and Development Agreement. This promissory note(the "Note")is made pursuant to the terms of the Disposition,Development and Loan Agreement between Resources for Community Development, The O'Brien Group and the Agency, executed as of March—, 2003 (the"DDLA"). All capitalized terms used:but not defined in this Note shall have the meanings set forth in the DDLA. 2. Interest: Repayment Terms. The outstanding principal amount due hereunder shall bear simple interest at the rate of three percent(3%)per annum commencing on the elate of disbursement and shall be due and payable at the tines and in the manner set forth in the Intercreditor Agreement between the Agency,the County, and the Developer of even date herewith(the "Intercreditor Agreement"). All amounts of principal and interest-:hereunder shall be due in full on the earlier to occur of (i) an Event of Default under the DDLA'; (ii) a Transfer not approved by the Agency pursuant to the DDLA; or(iii)fifty-five(55)yearsfollowing the issuance of a Certificate of Occupancy for the Apartment Improvements. In the event of a default by Developer under the Intercreditor Agreement or the Agency Documents,which default is not cured within the applicable notice cure periods,interest shall accrue, commencing on the date ofdefault, at the default rate equal to the lesser of ten percent(10%)per annum or the maximum rate permitted by law. 320\07\166411.3 .................. ...........-..... ...... 3. PrepMnent. As more fully set forth in Section 4.5 of the DDLA, the Developer shall have the right to prepay all or a portion of the principal and interest due under this Note without any charge or penalty being made therefor. 4. Agency Deed of Trust. This Note is secured by the Agency Deed of Trust of even date herewith to the Title Company, as Trustee. 5. Acceleration. As more fully set forth in Sections 8.4 and 8.6 of the DDLA,upon the occurrence of an Event of Default by Developer or as defined in the DDLA or Agency Deed of Trust,the Agency shall have the right to declare all of the unpaid principal and accrued interest immediately due and payable. Neither acceptance by the Agency of the payments provided for herein nor any failure by the Agency to pursue its legal and equitable remedies upon default shall constitute a waiver of the Agency's right to require prompt payments when due of all principal and interest owing or to declare a default and exercise all of its rights under this Note,the Agency Deed of Trust,the DDLA, and the other Agency Documents. 6. No Offset. The Developer hereby waives any rights of offset it now has or may hereafter have against the Agency, its successors and assigns, and agrees to make the payments called for herein in accordance with the terms of this Note. 7. Waiver.,Attorneas'Fees. The Developer and any endorsers or guarantors of this Note, for themselves,their heirs,legal representatives, successors and assigns,respectively,severally waive diligence,presentment, protest, and demand,and notice of protest,,dishonor and non- -pay- ment-6-fthi _extension of time or change in termsoflidyiii6iii,--6f-clfa-iig-e,--aTt-er-aTio-n-o-r-r-eTe-as-e--oTa-ny security given for the payments hereof, and expressly waive the right to plead any and all statutes of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly and severally agree to pay all costs of collection when incurred, including reasonable attorneys' fees. If an action is instituted on this Note, the undersigned promises to pay, in addition to the costs and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys'fees in such action. 8. Manner and Place of Payment. All payments of principal and interest and any late charge due under this Note, as well as any additional payments set forth in the Agency Deed of Trust, shall be payable in lawful money of the United States of Arnerica at the office of the Agency as set forth in Section 10.1 of the DDA or at such other address as the Agency may provide to the Developer by notice in accordance with Section 10.1 of the DDA. 9. Nonrecourse Obligation. Except as expressly provided in the second paragraph of this Section 9, the Developer, the Developer's officers., directors, employees and agents, and the Developer's partners (if the Developer is a partnership) shall not have any direct or indirect personal liability for payinent of the principal of, or interest on, this Note or of any other monetary obligation arising under this Note or the performance of the covenants of the Trustor under the Agency Deed of Trust securing this Note. The sole recourse of the Agency with respect to the principal of, or interest on, this Note and defaults by Trustor in the performance of its covenants under the Agency Deed of Trust shall be to the property securing the indebtedness 320WM66411.3 .......... evidenced by the Note. No judgment, or execution thereon, entered in any action, legal or equitable,on this Note or the Agency Deed of Trust shall be enforced personally against the Developer,but shall be enforced only against the property described in the Agency Deed of Trust and such other or further security as, from time to time,may be hypothecated for this Note; provided,however,that nothing contained in the foregoing limitation of liability shall (a) limit or impair the enforcement against all such security for this Note of all the rights and remedies of the Agency, or(b)be deemed in any way to impair the right of the Agency to assert the unpaid principal amount of this Note as demand for money within the meaning and intendment of Section 431.74 of the California Code of Civil Procedure or any successor provision thereto. The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the principal of, and payment of interest on this Note and the performance of Trustor's obligations under the Agency Deed of Trust, except as hereafter set forth. Nothing contained herein is intended to relieve the Developer of personal liability for: (1) fraud or willful misrepresentation; (2)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 Agency Deed of Trust(to the full extent of such taxes, assessments or other charges); (3)the fair market value of any personal property or fixtures removed or disposed of by Developer other than in accordance with the Agency Deed of Trust; (4)the misappropriation of any proceeds under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Property(to the extent of the misapplied proceeds or awards); (5)the Developer's indemnification obligations under Sections 6.7,.14.7, and 14.9 of the DDLA;_and_(6) any rental income or other income fter the Agency has given notice to the Developer of`ihe occurren-e o' an vent o e aiult and not applied to pay debt service and other operating costs of the Development unless otherwise applied pursuant to an order of a court of competent jurisdiction. 14. Assignment. The Agency's rights under this Note may be assigned by the Agency in its discretion. 11. Conflict. If any term or provision of this Note conflicts with any term or provision of the DDLA, the term or provision of the DDLA shall control to the extent of such conflict. RESOURCES FOR COMMUNITY DEVELOPMENT, a California nonprofit public benefit corporation By: Its: 320\07\166411.3 Exhibit H Form of Agency Deed of Trost RECORDING REQUESTED BY AND WHEN RECORDED FAIL TO: Contra Costa County Redevelopment Agency 651 PineStreet,N. Wing, 4th Floor Martinez, CA: 94553 Attention: Redevelopment Director No fee for recording pursuant to Government Code Section 27383 DEED OF TRUST WITH ASSIGNMENT OF RENTS AND SECURITY AGREEMENT (Bay View Community) THIS DEED OF TRUST WITH.ASSIGNMENT OF RENTS AND SECURITY AGREEMENT("Deed of Trust")is made as of this day of March,2003,by and among Resources for Community Development, a California nonprofit public benefit corporation ("Trustor"), Title Company, a California corporation("Trustee"), and the Contra Costa County Redevelopment Agency, a public body, corporate and politic ("Beneficiary") FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST,WITH POWER OF SALE,for the benefit and security of Beneficiary,under and subject to the terms and conditions hereinafter set forth, Trustor's fee interest in the property located in the County'of Contra Costa, State of California,that is described in the attached Exhibit A, incorporated herein by this reference(the "Property"). TOGETHER.WITH all interest, estates or other claims,both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements,rights-of-way and rights used in connection therewith or as a:means of access thereto, including(without limiting the generality of the foregoing)all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements of every kind and description now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property; 320\07\166415.2 1 TOGETHER WITH all building materials and equipment now or hereafter delivered to said property and intended to be installed therein; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property; TOGETHER.WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property,both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto,which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages to the extent Beneficiary has an interest in such awards for taking as provided in Paragraph 4.1 herein; and TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building,or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor,whether or not the same are,or shall be attached to said building or buildings in any manner. TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment, work in process and other personal property to be incorporated into the Property; all goods, materials,supplies,fixtures, equipment,machinery, furniture and furnishings, signs and other personal property now or hereafter appropriated for use on the Property, whether stored on the Property or elsewhere, and used or to be used in connection with the Property; all rents, issues and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles, chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance and condemnation awards and proceeds, trade names, trademarks and service marks arising from or related to the Property and any business conducted thereon by Trustor; all replacements, additions, accessions and proceeds; and all books,records and files relating to any of the foregoing. All of the foregoing, together with the Property, is herein referred to as the "Security." To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever. FOR THE PURPOSE OF SECURING: 320\07\166415.2 2 (a) Payment of just indebtedness of Trustor to Beneficiary as set forth in the Note (defined in Article I below)until paid or cancelled. Said principal and other payments shall be due and payable as provided in the Note. Said Nate and all its terms are incorporated herein by reference, and this conveyance shall secure any and all extensions thereof, however evidenced, and (b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to advance said sums and the expiration of any applicable cure period,with interest thereon as provided herein; and (c) Performance of every obligation, covenant or agreement of Trustor contained herein and in the Loan Documents (defined in Section 2.2 below). AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST,TRUSTOR COVENANTS AND AGREES: ARTICLE I DEFINITIONS In addition to the terms defined elsewhere in this Deed of Trust, the following terms shall have the following meanings in this Deed of Trust: Section 1.1 The term."DDLA"means that certain Disposition, Development and Loan Agreement between Trustor,Beneficiary, and The O'Brien Group, dated of even date herewith providing for the Beneficiary to loan to the Trustor Two Million Six Hundred Twenty Two Thousand Four Hundred Sixty Two Dollars($2,622,462)for the Development of the Property. Section 1.2 The term"Loan Documents"means this Deed of Trust,the Note,the DDLA,the Regulatory Agreement,and any other debt, loan or security instruments between Trustor and the Beneficiary relating to the Property. Section 1.3 The term "Dote" means the promissory note in the principal amount of Two Million Six Hundred Twenty Two Thousand Four Hundred Sixty Two Dollars ($2,622,462) dated of even date herewith executed by the Trustor in favor of the Beneficiary, the payment of which is secured by this Deed of Trust. (A copy of the Note is on file with the Beneficiary and terms and provisions of the Note are incorporated herein by reference.). Section 1.4 The term "Principal" means the amount required to be paid under the Note. Section 1.5 The term "Regulatory Agreement" means the regulatory agreement by and between the Beneficiary and the Trustor, dated of even date herewith and recorded concurrently herewith in the official Records of Contra Costa County. 320\07\166415.2 3 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 of the sum owed under the Note, the Trustor will, at the Trustor's own expense, maintain,preserve and keep the Security or cause the Security to be maintained and preserved in good condition. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Security. Trustor agrees to pay fully and discharge(or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty(30)days or more, and to take all other reasonable steps to forestall the assertion of claims of lien against the Security of any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary as its agent(said agency being coupled with an interest)with the authority,but without any obligation, to file for record any notices of completion or cessation of labor or any other notice that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the Loan Documents; provided,however, that Beneficiary shall exercise its rights as agent of Trustor only in the event that Trustor shall fail to take, or shall fail to diligently continue to take,those actions as hereinbefore provided. Upon demand by Beneficiary,Trustor shall make or cause to be made such demands or claims as Beneficiary shall specify 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 shall require Trustor to pay any claims for labor,materials or services which Trustor in good faith disputes and is diligently contesting provided that Trustor shall, within thirty(30) days after the filing of any claim of lien,record in the Office of the Recorder of Contra Costa County, a surety bond in an amount 1 and 1/2 times the amount of such claim item to protect against a claim of lien. Section 2.2 Granting of Easements. Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in the nature of easements with respect to any property or rights included in the Security except those required or desirable for installation and maintenance of public utilities including,without limitation, water, gas, electricity, sewer,telephone and telegraph, or those required by law and as approved, in writing,by Beneficiary. Section 2.3 Assignment of Rents. As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of 320\071166415.2 4 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 Beneficiaryor 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 Truster 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 sums secured by this Deed of Trust with 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 constitutes an absolute assignment and not an assignment for additional security only. Upon delivery of written notice by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan Documents, and without the necessity of Beneficiary entering upon and taking and maintaining full control of the Property in person,by agent or by a court-appointed'receiver, Beneficiary shall immediately be entitled to possession of all rents and revenues of the Property as specified in this Section 2.3 as the same becomes due and payable,including but not limited to bents then due and unpaid, and all such rents shall 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 shall contain 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 Benef ciary's agents on Beneficiary's written demand to each tenant therefor, delivered to each tenant personally,by mail or by delivering such demand to each rental unit, without any liability on the part of said tenant to inquire further as to the existence of a default by Trustor. 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 Section 2.3, and that at the time of execution of this Deed of Trust, there has been no anticipation or prepayment of any of the rents of the Property for more than two (2)months prior to the due dates of such rents. Trustor covenants that Trustor will not hereafter collect or accept payment of any rents of the Property more than two(2)months prior to the due dates of such rents. Trustor further 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 security, enter upon and take and maintain full control of the Property in order to perform all acts necessary and appropriate for the operation and maintenance thereof including, but not limited to, the execution, cancellation or modification of leases, the collection of all rents and revenues of the Property,the making of repairs to the Property and the execution,or termination of contracts providing for the management or maintenance of the Property, all on such terms as are deemed best to protect the security of this Deed of Trust. In the event Beneficiary elects to seek the appointment of a receiver for the Property upon Trustor's breach of 320\071166415.2 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 shall be entitled to receive a reasonable fee for so managing the Property. All rents and revenues collected subsequent to delivery of written notice by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Truster in the Loan Documents shall be applied first to the costs,if any, of taking control of and managing the Property and collecting the rents, including,but not limited to, attorney's fees, receiver's fees, premiums on receiver's bonds,costs of repairs to the Property,premiums on insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any obligation or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this deed of Trust. Beneficiary or the receiver shall have access to the books and records used in the operation and maintenance of the Property and shall,be liable to account only for those rents actually received. Beneficiary shall not be liable to Tmstor,anyone claiming under or through Trustor or anyone having an interest in the Property by reason of anything done or left undone by Beneficiary under this Section 2.3. If the rents of the Property are not sufficient to meet the costs, if any,of taking control of and managing the Property and collecting the rents, any funds expended by Beneficiary for such purposes shall become indebtedness of Trustor to Beneficiary secured by this Deed of Trust pursuant to Section 3.3 hereof. Unless Beneficiary and Trustor agree in writing to other terms of payment,such amounts shall be payable upon notice from Beneficiary to Trustor requesting payment thereof and shall bear interest from the date of disbursement at the rate stated in Section 3.3. Any entering upon and taking and maintaining of control of the Property by Beneficiary or the receiver and any application of rents as provided herein shall not cure or waive any default hereunder or invalidate any other right or remedy of Beneficiary under applicable law or provided herein. This assignment of rents of the Property shall terminate at such time as this Deed of Trust ceases to secure indebtedness held by Beneficiary. ARTICLE 3 TAXES AND INSURANCE; ADVANCES Section 3.1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, at least fifteen (15)days prior to the date of delinquency, all taxes,assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however,that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a)the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings.and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this Section 3.1. With respect to taxes, special assessments or other similar governmental charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of the Security;provided,however, if such taxes, assessments or charges 320\071166415.2 6 may 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 shall not be construed to require that Trustor maintain a reserve account,escrow account, impound account or other similar account for the payment of future taxes, assessments, charges and levies'. In the event that Trustor shall fail to pay any of the foregoing 'items required by this Section to be paid by Trustor, Beneficiary may(but shall be 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 advancedtherefor by Beneficiary,together with interest thereon from the date of such advance at the maximum rate permitted by law, shall became an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor agrees to pay all such amounts. Section 3.2 provisions Respecting Insurance. Trustor agrees to provide insurance conforming in all respects to that required under the Loan Documents during the course of construction and following completion, and at all times until all amounts secured by this Deed of Trust have been paid and all other obligations secured hereunder fulfilled, and this Deed of Trust reconveyed. All such insurance policies and coverages shall 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, shall be delivered to the Beneficiary upon demand therefor at any time prior to the Beneficiary's receipt of the entire Principal and all amounts secured by this Deed of Trust. Section 3.3 Advances. In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Security in accordance with the Loan Documents,the Beneficiary, after at least seven(7)days prior notice to Beneficiary, may(but shall be under no obligation to)take out the required policies of insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and all amounts<so advanced therefor by the Beneficiary shall become an additional obligation of the Trustor to the Beneficiary(together with interest as set forth below)and shall be secured hereby, which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the lesser of eight percent(8%)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 compensation made in connection with or in lieu of(1) taking of all or any part of or any interest in the Property by or under 320107\166415.2 7 ........................................................_............._.. _ ......._. .................. ........ assertion of the power of eminent domain, (2) any damage to or destruction of the Property or in any part thereof by insured casualty, and(3) any other injury or damage to all or any part of the Property("Funds") are hereby assigned to and shall 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 upon any indebtedness or obligation secured hereby, in such order and manner as the Beneficiary shall determine at its sole option. The Beneficiary shall be entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment. All or any part of the amounts so collected and recovered by the Beneficiary may be released to Trustor upon such conditions as the Beneficiary may impose for its disposition. Application of all or any part of the Funds collected and received by the Beneficiary or the release thereof shall 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 mortgage lender. ARTICLE 5 AGREEMENTS AFFECTING THE PROPERTY; FURTHER ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST Section 5.1 Other Agreements Affecting Property. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Loan Documents and any other agreement of any nature whatsoever now or hereafter involving or affecting the Security or any part thereof. Section 5.2 Agreement to Pay Attorneys'Fees and Expenses. In the event of any Event of Default(as defined below)hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust,the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall 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. 320N07\166415.2 8 To the maximum extent permitted by law,the personal property subject to this Deed of Trust shall be deemed to be fixtures and part of the real property and this Deed of Trust shall constitute a fixtures filing under the California Commercial Code. As to any personal property not deemed or permitted to be fixtures,this Deed of Trust shall constitute a securityagreement 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 valid perfected security interest in the Security. The Trustor agrees to perform all acts which the Beneficiary may reasonably request so as to enable the Beneficiary to maintain such valid perfected security interest in the Security in order to secure the payment of the Note in accordance with their terms. The Beneficiary is authorized to file a copy of any such financing statement in any jurisdiction(s) as it shall deem appropriate from time to time in order to protect the security interest established pursuant to this instrument. Section 5.6 Operation of the Security. The Trustor shall operate the Security(and,in case of a transfer of a portion of the Security subject to this Deed of Trust,the transferee shall operate such portion of the Security)in full compliance with the Loan Documents. Section 5.7 Inspection of the Security. At any and all reasonable times upon seventy-two(72)hours'notice,the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives,shall have the right,without payment of charges or fees, to inspect the Security. Section 5.8 Nondiscrimination. The Trustor herein covenants by and for itself, its heirs, executors,administrators, and assigns,'and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person'or group of persons on account of race, calor, 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 shall the Trustor itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number,use or occupancy of tenants,lessees,subtenants, sublessees or vendees in the Security, The foregoing covenants shall run with the land. ARTICLE 6 HAZARDOUS 'WASTE Trustor shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal,state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property 320\07\166415.2 9 .............................. ............................... .................................. 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 Property any flammable explosives, radioactive materials,hazardous wastes,toxic substances or related materials, including without limitation, any substances defined as or included in the definition of"hazardous substances," hazardous wastes," "hazardous materials," or"toxic substances" under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous Materials") except such of the foregoing as may be customarily kept and used in and about multifamily residential property. Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of(i)any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, ("Hazardous Materials Law"); (ii)all claims made or threatened by any third party against Trustor or the Property relating to damage,contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials(the matters set forth in clauses (i) and(ii) above hereinafter referred to a "Hazardous Materials Claims"); and(iii)Trustor's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as "border-zone property"under the provision of California Health and Safety Code, Sections 25220 et seq. or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. Beneficiary shall have the right to Join and participate 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 Trustor. Trustor shall indemnify and hold harmless Beneficiary and its boardmembers, supervisors, directors, officers, employees, agents,successors and assigns from and against any loss, damage, cost, expense or liability 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: (a)all foreseeable consequential damages; (b) the costs of any required or necessary repair, cleanup or,detoxification 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 connection with clauses (a) and(b), including but not limited to reasonable attorneys' fees. Without Beneficiary's prior written consent, which shall not be unreasonably withheld, Trustor shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement,consent decree or compromise might, in Beneficiary's reasonable judgement, impair the value of the Beneficiary's security hereunder; provided, however, that Beneficiary's prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain Beneficiary's consent before taking such action, provided that in such event Trustor shall notify Beneficiary as soon as practicable of any action so taken. 320\07\166416.2 10 .......... .............. .......... Beneficiary agrees not to withhold its consent,where such consent is required hereunder,if either(i)a particular remedial action is ordered by a court of competent jurisdiction,(ii)Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii)Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial action which would result in less impairment of Beneficiary's security hereunder; or(iv)the action has been agreed to by Beneficiary. The Truster hereby acknowledges and agrees that(i)this Article is intended as the Beneficiary's written request for information(and the Trustor's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and(ii) each representation and warranty in this Deed of Trust or any of the other Loan Documents(together with any indemnity applicable to a breach of any such representation and warranty)with respect to the environmental condition of the property is intended by the Beneficiary and the Trustor to be an"environmental provision" for purposes of California Code of Civil Procedure Section 736. 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 anyway affecting the Beneficiary's or the Trustee's rights and remedies under thisDeedof Trust, the Beneficiary may elect to exercise its rights under California Code of Civil Procedure Section 726.5(x)to (1)waive its lien on such environmentally impaired or affected portion of the Property and(2)exercise (a) the rights and remedies of an unsecured creditor, including reduction of its claim against the Trustor to judgment, and(b)any other rights and remedies permitted by law. For purposes of determining the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a),the Trustor shall 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)(I), if the release or threatened release of hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and the Trustor knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including(but not limited to) attorneys' fees,incurred by the Beneficiary in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b)to determine the degree to which.the Property is environmentally impaired,plus interest thereon at the rate specified in the Note until paid,shall be added to the indebtedness secured by this Deed of Trust and shall be due and payable to the Beneficiary upon its demand made at any time following the conclusion of such action. ARTICLE 7 EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default. 320\07\166415.2 1 j ....................... _...................... ..........................................................._.. The following shall constitute Events of Default following the expiration of any applicable,notice and cure periods: (1) failure to make any payment to be paid by Trustor under the Loan Documents; (2) failure to observe or perform any of Trustor's other covenants, agreements or obligations under the Loan Documents, including, without limitation,the provisions concerning discrimination; or(3)failure to make any payment or perform any of Trustor's other covenants, agreements, or obligations under any other,debt instruments or regulatory agreement secured by the Property,which default shall not be cured within the times and in the manner provided therein. Section 7.2 Acceleration of Maturity. If an Event of Default shall have occurred and be continuing, then at the option of the Beneficiary,the amount of any payment related to the Event of Default and the unpaid Principal of-the Note shall immediately become due and payable,upon written notice by the Beneficiary to the Trustor(or automatically where so specified in the Loan Documents), and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall 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 shall have occurred and be continuing,the Beneficiary may: (a) Either in person or by agent,with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security,enter upon the Security and take possession thereof(or any part thereof) and of any of the Security,in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, or part thereof or interest therein,increase the income therefrom or protect the security thereof. The entering upon and taking possession of the Security shall not cure or waive any Event of Default or Notice of Default(as defined below)hereunder or invalidate any act done in response to such Default or pursuant to such Notice of Default and,notwithstanding the continuance in possession of the Security,Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any Event of Default,including the right to exercise the power of sale; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver,or'specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of 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 Default and Election to Sell"), which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of Contra Costa County; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to any Security,or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. 320107\166415.2 12 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 give notice 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 shall be deemed to constitute evidence that the unpaid principal amount of the Note is immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. (a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded,published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on'Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and Election to Sell and after Notice of Sale having been givers as required by law,sell the Security, at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine 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 shall,be conclusive proof of the truthfulness thereof. Any person, including, without limitation,Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers. (b) After deducting all reasonable costs,fees and expenses of Trustee, including costs of evidence of title in connection with such sale,Trustee shall apply the proceeds of sale to payment of (i) the unpaid Principal amount of the Note; (ii) all other amounts 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 discretion, give a new Notice of Sale. 320\07\166415.2 13 Section 7.5 Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under the Security, and without regard to the then value of the Security or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security(or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Security,unless such receivership is sooner terminated. Section 7.6 Remedies Cumulative. No right,power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right,power or remedy,but each and every such right,power and remedy shall be cumulative and concurrent and shall be in addition to any other right,power and remedy given hereunder or now or hereafter existing at law or in equity. Section 7.7 No Waiver. (a) No delay or omission of the Beneficiary to exercise any right,power or remedy accruing upon any Event of Default shall exhaust or impair any such right,power or remedy, or shall be construed to be a waiver of any such Event of Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. Beneficiary's expressed or implied consent to a breach by Trustor, or a waiver of any obligation of Trustor hereunder shall not be deemed or construed to be a consent to any subsequent breach, or further waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its 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 time for the payment of any sums secured hereby, (ii)takes other or additional security or the payment of any sums secured hereby, (iii)waives or does not exercise any right granted in the Loan Documents, (iv)releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents, (v) consents to the granting of any easement or other right affecting the Security, or(iv)makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co- signer, endorser, surety or guarantor(unless expressly released); nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then made or of any subsequent Event of 320\07\166415.2 14 Default,;not, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. Section 7.8 Suits to Protect the Security. The Beneficiary shall have power to (a)institute and maintain such suets and proceedings as it may deem expedient to prevent any impairment of the Security and the rights of the Beneficiary as may be unlawful or any violation of this Deed of Trust, (b)preserve or protect its interest(as described in this Deed of Trust) in the Security, and(c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the Security thereunder or be prejudicial to the interest of the Beneficiary. Section 7.9 Trustee May File Proofs of Claim. In the case of any receivership, insolvency,bankruptcy, reorganization, arrangement, adjustment,composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary,to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings and for any additional amount which may become 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 sums owing under the Note or in proceedings against the Security, in connection with the delivery, acceptance,performance, default,endorsement or guaranty of this Deed of Trust. ARTICLE 8 MISCELLANEOUS Section 8.1 Amendments. This instrument 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 sums secured hereby have been paid or forgiven,and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the person or persons legally entitled thereto. Section 8.3 Notices. 3201071166415.2 15 .............-.... .............-................ ........... If at any time after the execution of this Deed of Trust it shall become necessary or convenient for one of the parties hereto to serve any notice, demand or communication upon the other party, such notice, demand or communication shall be in writing and shall 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 shall be addressed to: Contra Costa County Redevelopment Agency 651 Pine Street,N. Wing, 4th Floor Martinez, CA 94553 Attention: Redevelopment Director and(2) if intended for Trustor shall be addressed to: Resources for Community Development 2131 University Ave., Suite 224 Berkeley, CA 94704 Attn: Executive Director Any notice,demand or communication shall 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 Joint Trustors. Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind 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 shall be deemed to be a joint and several obligation of the Trustor and such transferee. Where Trustor is more than one entity or person, all obligations of Trustor shall be deemed to be a joint and several obligation of each and every entity and person comprising Trustor. Section 8.5 Captions, The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. Section 8.6 Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or 3201071166415.2 16 -..... .......... ........... partially secured portion of the debt, and all payments made on the debt,whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. Section 8.7 Governing Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. Section 8.8 Gender and Number. In this Deed of Trust the singular shall include the plural and the masculine shall include 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 shall also refer to a deed of trust and any reference to a Gleed of trust shall also refer to a mortgage. Section 8.10 Actions. Trustor agrees to appear in and defend any action or proceeding purporting to affect the Security. Section 8.11 Substitution of Trustee. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee,the latter shall be vested with all title,powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Beed 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, shall be conclusive proof of proper appointment of the successor trustee. Section 8.12 Statute of Limitations. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law. Section 8.13 Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. 320\07\166415.2 17 ........... ....... ...... Section 8.14 Tax Credit Provisions. Notwithstanding anything to the contrary contained herein or in any documents secured by this deed of trust or contained in any subordination agreement,the Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure (collectively, "Foreclosure") with respect to the property encumbered by this deed of trust, the following rule contained in Section 42(h)(6)(E)(ii)of the Internal Revenue Code of 1986, as amended, shall apply: 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 Allocation 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 Code. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. TRUSTOR: RESOURCES FOR COMMUNITY DEVELOPMENT, a California nonprofit public benefit corporation By: Its: 320\071166415.2 18 _. ......... ......... ..._._.. . __ ...... ........ ............................ ......... _._.... . ................................................. STATE OF CALIFORNIA ) ss. COUNTY OF } On , before me, ,personally appeared ,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the samein his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s)or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 320\07\1664151 EXHIBIT I REGULATORY AGREEMENT (Bay View Community Housing) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Contra Costa County Redevelopment Agency 651 Pine Street, 4th Floor,North Wing Martinez, CA 94533 Attn: Redevelopment Director No fee for recording pursuant to Government Code Section 27383 REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS This Regulatory Agreement and Declaration of Restrictive Covenants(the "Agreement") is made and entered into as of this_ day of March, 2003,by and between the Contra Costa County Redevelopment Agency, a public body corporate and politic(the"Agenpy"), and. Resources for Cominunity Development, a California nonprofit public benefit corpofaticn(the "Developer"). RECITALS 1. The Agency and the Developer-have entered into a DDLA(as defined below) under which the Agency will convey certain real property(the"Property")to the Developer and the Agency will provide a loan(the "Agency Loan")to the Developer for acquisition and development on the Property of fifty-two (52)residential units affordable to lower income households(excluding one(1)manager's unit) (the"Development"). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the DDLA. 2. The Agency Loan is funded with Agency Low and Moderate Income Housing Fund monies pursuant to Health and,Safety Code Section 33334.2, and is made by the Agency as seller carry-back financing to finance the Developer's acquisition of the Property. 3. The Agency has agreed to convey the Property and to make the Agency Loan to the Developer on the condition that the Development be maintained and operated in accordance with restrictions concerning affordability, operation, and maintenance of the Development,as specified in this Agreement and the DDLA. 320107\188389.4 I-1 4. The Agency intends to apply the units in the Development,to the extent permitted by law,toward satisfaction of its project area housing production obligations under Health and Safety Code Sections 33413(b)(2) for the Bay Point Redevelopment Project Area. The Agency also intends to utilize the Development to obtain replacement housing credits pursuant to Health and Safety Code Section 33413(x). To serve these purposes, and to comply with the affordability requirements of Health and Safety Code Section 33334.3(f)governing use of Low and Moderate Income Housing Funds,the Agency is restricting fifty-one(5 1)units in the Development pursuant to this Agreement so that they remain affordable to households with incomes as specified herein for the fifty-five(55)years. 5. In consideration of conveyance of the Property and receipt of the Agency Loan at an interest rate substantially below the market rate,the Developer has fiuther agreed to observe; all the terns and conditions set forth below. 6. In order to ensure that the entire Development will be used and operated in accordance with these conditions and restrictions,the Agency and the Developer wish to enter into this Agreement. THEREFORE,the Agency and the Developer hereby agree as follows. ARTICLE 1 DEFINITIONS 1.1 Definitions. When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Article 1. (a) "Actual Household Size" shall mean the actual number of persons in the applicable household. (b) "Adjusted Income" shall mean total anticipated income of all persons in a household as calculated in accordance with 25 California Code of Regulations Section 6914(or if Section 6914 ceases to provide a method of calculation, a reasonable substitute provided by the Agency). (c) "Agency" shall mean the Contra Costa County Redevelopment Agency and,in the event the Agency ceases to exist, the County of Contra Costa or such successor entity as the Agency may designate. (d) "Agency Deed of Trust" shall mean the deed of trust to the Agency on the Property which secures repayment of the Agency Loan and performance of the DDLA and this Agreement. (e) "Agency Loan" shall mean all funds loaned to the Developer by the Agency pursuant to the DDLA. 3201071166389.4 1-2 (f) "Agency Note shall mean the promissory nate from the Developer to the Agency evidencing all or any part of the Agency Doan. (g) "Agreement" shall mean this Regulatory Agreement and Declaration of Restrictive Covenants. (h) "Assumed Household Size" shall mean a household of one person in the case of a studio unit,two persons in the case of a one-bedroom unit, and three(3)persons in the case of a two-bedroom unit, four(4)persons in the case of a three-bedroom unit and five(5) persons in the case of a four-bedroom unit,'unless.the Development receives financing from a federal:program that utilizes different household size assumptions, in which event the federal program household size assumptions shall be utilized. (i) "Certificate of Completion Date" shall mean the date of issuance by the Agency of a Certificate of Completion for the Development pursuant to Section 5.12'ofthe DDLA. (j) "County" shall mean the County of Contra Costa. (k) "DDLA" shall mean the Disposition,Development, and Loan Agreement entered into by and among the Agency, the Developer,and The O'Brien Croup dated March 2003. (1) "Developer" shall mean Resources for Community Development, a -California nonprofit public benefit corporation, and its successors and assigns to the Development. (m) "Development" shall mean the Property and the fifty-two(52)residential units to be developed on the Property, as well as any additional improvements,'and all landscaping,roads and parking spaces existing therm, as the same may from time to time exist. (n) "Forty-Five Percent Household" shall mean a household with an Adjusted Income which does not exceed forty-five percent(45%) of Median Income. (o) "Forty-Five Percent Units" shall mean the Units which,pursuant to Section.2.1(b)below, are required to be occupied by Forty-Five Percent Households. (p) "Lower Income Household" shall mean a household with an Adjusted Income that does not exceed the qualifying limits for lower income households,'adjusted for Actual Household Size, as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, and as published by the State of California Department of Housing and Conumm ty Development. (q) "Median Income" shall mean the median gross yearly income, adjusted for Actual Household Size or Assumed Household Size as specified herein, in the County of Contra Costa, California, as published from time to time by the State of California. In the event that such income determinations are no longer published,or are not updated for a period of at least 3201071166389.4 1-3 eighteen(18)months,the Agency shall provide the Developer with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the State. (r) "Property" shall mean the real property described in Exhibit A attached hereto and incorporated herein. (s) "Rent" shall mean the total of monthly payments by the Tenant of a Unit for the following: use and occupancy of the Unit and land and associated facilities, including parking;any separately charged fees or service charges assessed by the Developer which are required of all Tenants, other than security deposits;the cost of an adequate level of service for utilities paid by the Tenant,including garbage collection, sewer,water, electricity, gas and other heating, cooking and refrigeration fuel,but not telephone service or cable TV; and any other interest,taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than the Developer,and paid by the Tenant. (t) "Sixty Percent Household" shall mean a household with an Adjusted Income which does not exceed sixty percent(60%)of Median Income, adjusted for Actual Household Size. (u) "Sixty Percent Units" shall mean the Units which,pursuant to Section 2.1(d)below, are required to be occupied by Sixty Percent Households. (v) "Tenant" shall mean a household occupying a Unit. (w) "Tenn" shall mean the term of this Agreement, which shall commence on the Certificate of Completion Date and shall continue until the later of(1)the fifty-fifth(55th) anniversary of the Certificate of Completion Date,or(2)repayment in full of the Agency Loan and all interest due thereon. (x) "Thirty Percent Household" shall mean a household with a Adjusted income which does not exceed thirty percent(30%)of Median Income. (y) "Thirty Percent Units" shall mean the Units which, pursuant to Section 2.1(a)below, are required to be occupied by Thirty Percent Households. (z) "Unit" shall mean one of the fifty-two (52)rental units to be constructed on the Property. (aa) "Very Low Income Household" shall mean a household with an Adjusted Income that does not exceed the qualifying limits for very low income households, adjusted for Actual Household Size, as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, and as published by the State of California Department of Housing and Community Development. 3201071166389A 1-4 (bb) "Very Low Income Units" shall mean the Units which, pursuant to Section 2.1(c)below, are required to be occupied by Very Low Income Households. ARTICLE 2 AFFORDABILITY AND OCCUPANCY COVENANTS 2.1 Occ4pancy Requirement. (a) Thirty Percent Units. Five(5) of the Units shall be rented to and occupied by or, if vacant, available for occupancy by Thirty Percent Households. (b) Forty-Five Percent Units. Fourteen(14) of the Units shall be rented to and occupied by,or, if vacant, available for occupancy by Forty-Five Percent Households. (c) Very Low Income Units. Five(5)of the Units shall be rented to and occupied by or,if vacant, available for occupancy by Very Low Income Households. (d) Sixty Percent Units. Twenty-Seven(27)of the Units shall be rented to and occupied by or, if vacant, available for occupancy by Sixty Percent Households. (e) Intem-dn ink.of Units. All.Units shall be intermingled and be of comparable quality. Tenants in all Units shall have equal access to and enjoyment of all common facilities of the Development. (f) Preference for Agency DiWlacees. The Developer shall give preference in the rental of any Units to eligible households referred to Developer by the Agency who have been displaced by activity of the Agency or County, as required pursuant to Health and safety Code Section 33411.3. 2.2 Allowable Rent. (a) Thirty Percent Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of Thirty Percent Units, shall not exceed one-twelfth(1/12th)of thirty Percent(30%) of thirty percent(30%) of Median Income, adjusted for Assumed Household Size. (b) Forty-Five Percent Rent. Subject to the previsions of Section 2.3 below, the Rent charged to Tenants of Forty-Five Percent Units, shall not exceed one-twelfth(1/12th) of thirty percent(30%c,)of forty-five percent(45%) of Median Income, adjusted for Assumed Household Size. (c) Very Low Income Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Very Low Income Units shall not exceed one-twelfth(1/12) of thirty percent(30%o) of fifty percent(50%)of Median Income, adjusted for Assumed Household Size. 3201071166889.4 I-5 (d) Sixty Percent Rent. Subject to the provisions of Section 2.3 below,the Rent charged to Tenants of the Sixty Percent Units shall not exceed one-twelfth of thirty percent (30%) of sixty percent(60%)of Median Income, adjusted for Assumed Household Size. (e) Agency Approval of Rents. Initial rents for all Units shall be approved by the Agency prior to occupancy. All rent increases shall also be subject to Agency approval. 2.3 Increased Income of Tenants. (a) Increased Income to Forty-Five Percent. In the event, upon recertification of an occupant household's income,the Owner discovers that a Thirty Percent Household no longer qualifies as a Thirty Percent Household(but does qualify as a Forty-Five Percent Household),such household's Unit shall be considered a Forty-Five Percent Unit(and the Rent may be increased to one-twelfth(1/12h)of thirty percent(30%)of forty-five percent(45%) of Median Income upon sixty(60) days written notice to the household)and the Owner shall rent the next available Unit to a Thirty Percent Household to comply with the requirements of Section 2.1 above. (b) Increased Income to Fifty Percent. In the event,upon recertification of an occupant household's income,the Owner discovers that a Thirty Percent Household or Forty- Five Percent Household no longer qualifies as a Thirty Percent Household, or Forty-Five Percent Household(but does qualify as a Very Low Income Household), such household's Unit shall be considered a Very Low Unit(and the.Rent may be increased to one-twelfth(1/12`h)of thirty percent(30%)of fifty percent(50%) of Median Income upon sixty(60)days written notice to the household) and the Owner shall rent the next available Unit to a Thirty Percent Household or Forty-Five Percent Household, as applicable;to comply with the requirements of Section 2.1 above. (c) Increased income to Sixty Percent. In the event,upon recertification of an occupant household's income, the Owner discovers that a Thirty Percent Household, Forty-Five Percent Household, or Very Low Income Household no longer qualifies as a Thirty Percent Household, Forty-Five Percent Household or Very Low Income Household(but does qualify as a Sixty Percent Household), such household's Unit shall be considered a Sixty Percent Unit(and the Rent may be increased to one-twelfth(1/12�')of thirty percent(300J0) of sixty percent(60%) of Median Income upon sixty(60)days written notice to the household) and the Owner shall rent the next available Unit to a Thirty Percent Household, Forty-Five Percent Household, or Very Low Income Household, as applicable, to comply with the requirements of Section 2.1 above. (d) Increased income above Sixty Percent but below Lower Income Limit. In the event that,upon recertification of an occupant household's income, the income of a Thirty Percent Household, Forty-Five Percent Household,Very Low Income Household, or Sixty Percent Household increases above the qualifying limit for a Sixty Percent Household,but not above the qualifying income for a Lower Income Household,the rent shall remain at thirty percent(30%)of sixty percent(60%) of Median Income,the Unit shall continue to qualify as a Sixty Percent Unit, and the next available Unit shall be rented to a Thirty Percent Household, 320\07\166369.4 1-6 Forty-Five Percent Household,Very Low Income Household, or Sixty PercentHousehold, as necessary to meet the requirements of Section 2.1 above. (e) Non-Qualifying Household. If,upon recertification of a'Tenant's income, the Owner determines that a Tenant has an Adjusted Income exceeding the qualifying limit for Lower Income Households such Tenant shall be permitted to continue to occupy the Unit at Rent not exceeding one-twelfth of thirty percent(30°lo)of one hundred ten percent(110%)of Median Income, and the Unit shall continue to be classified as a Sixty Percent Unit until the Tenant vacates the Unit at which time the Unit shall be re-rented to a Thirty Percent Household,Forty- Five Percent Household, Very Low Income Household,or Sixty Percent Household,as applicable, to meet the requirements of Section 2.1 above. (f) Termination of Occupancy. Upon termination of occupancy of a Unit by a Tenant,such Unit shall be deemed to be continuously occupied by a household'of the same income level (e.g., Thirty Percent Household, Forty-Five Percent Household,Very Low Income Household.or Sixty Percent Household) as the initial income level of the vacating Tenant,until such Unit is reoccupied, at which time the income character of the Unit(e.g.,Thirty Percent Unit, Forty-Five Percent Unit,Very Low Income Unit or Sixty Percent Unit) shall be redetermined. 3=07\166389.4 I-7 ............................. ....................... ............ ARTICLE 3 INCOME CERTIFICATION AND REPORTING 3.1 Income Certification. The Developer will obtain, complete and maintain on file,immediately prior to initial occupancy and annually thereafter,income certifications from each Tenant renting any of the Units. The Developer shall make a good faith effort to verify that the income provided by an applicant-or occupying household in an income certification is accurate by taking two or more of the following steps as a part of the verification process: (a)obtain a pay stub for the most recent pay period; (b)obtain an income tax return for the most recent tax year; (c) conduct a credit agency or similar search; (d) obtain an income verification form from the applicant's current employer-, (e)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(f)if the applicant is unemployed and has no such tax return,obtain another form of independent verification. Copies of Tenant income certifications shall be available to the Agency upon request. 3.2 Annual Report to Agency. The Developer shall submit to the Agency(a)not later than the sixtieth(60th)day after the close of each fiscal year, or such other date as may be requested by the Agency, a statistical report, including income and rent data-for all units, setting forth the information called for therein, and(b)within fifteen(15) days after receipt of a written request, any other information or completed forms requested by the Agency in order to comply with reporting requirements of the State of California. 3.3 Additional Information. The Developer shall provide any additional information reasonably requested by the Agency. The Agency shall have the right to examine and make copies of all books, records or other documents of the Developer which pertain to the Development. 3.4 Records. The Developer shall maintain complete, accurate and current records pertaining to the Development, and shall pen-nit any duly authorized representative of the Agency to inspect records, including records pertaining to income and household size of Tenants. All Tenant lists, applications and waiting lists relating to the Development shall at all times be kept separate and identifiable from any other business of the Developer and shall be maintained as required by the Agency in a reasonable condition for proper audit and subject to examination during business hours by representatives of the Agency. The Developer shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least three(3) years after such record is made. 320\07\166382.4 1-8 ------------------------- ................. .....................I..... 3.5 On-site_Inspection. The Agency shall have the right to perform an on-site inspection of the Development at least one time per year. The Developer agrees to cooperate in such inspection. ARTICLE 4 OPERATION OF THE DEVELOPMENT 4.1 Residential Use. The Development shall be operated only for residential use. No part of the Development shall be operated.as transient housing. 4.2 Compliance with Loan Agreement. Developer shall comply with all the terms and provisions of the Loan Agreement. 4.3 Taxes and Assessments. Developer 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 line or charge from attaching to the Property,provided,however, that Developer shall have the right to contest in good faith, any such taxes,assessments,or charges. In the event ._ Developer exercises its right to contest any tax, assessment, or charge against it,Developer,on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. 4.4 Prcipge Tax Exemption. Developer shall not apply for a property tax exemption for the property under any provision of law except California Revenue and Taxation Section 214(g), without the prior written consent of the Agency which consent shall not be unreasonably withheld. 3=07\188389.4 1-9 _ ...... . .. ..............._.. ...................................... ..._.._ ARTICLE 5 PROPERTY MANAGEMENT AND MAINTENANCE 5.1 Management Responsibilities. The Developer is responsible for all management functions with respect to the Development, including without limitation the selection of tenants, certification and recertification of household size and income, evictions, collection of rents and deposits, maintenance, landscaping,routine and extraordinary repairs,replacement of capital items, and security. The Agency shall have no responsibility over management of the Development. The Developer shall retain a professional property management company approved by the Agency in its reasonable discretion to perform its management duties hereunder. A resident manager shall also be required. 5.2 Management Agent; Periodic Reports. The Development shall at all times be managed by an experienced management agent reasonably acceptable to the Agency,with demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing(as approved, the "Management Agent"). The Developer shall submit for the Agency's approval the identity of any proposed Management Agent(anal the Agency pre-approves, as Management Agent,The John Stewart Company). The Developer shall also submit such additional - infonnation about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for the Agency 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 Agency shall approve the proposed Management Agent by notifying the Developer in writing. Unless the proposed Management Agent is disapproved by the Agency within thirty(30) days,which disapproval shall state with reasonable specificity the basis for disapproval,it shall be deemed approved. 5.3 Performance Review. The Agency reserves the right to conduct an annual (or more frequently,if deemed necessary by the Agency) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable the Agency to determine if the Development is being operated and managed in accordance with the requirements and standards of this Agreement. The Developer shall cooperate with the Agency in such reviews. 3201071166389.4 1-10 5.4 Re ulacement of MMagement Agent. If,as a>result of a periodic review,the Agency 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,the Agency shall deliver notice to Developer of its intention to cause replacement of the Management Agent,including the reasons therefor. Within fifteen(15)days of receipt by Developer of such written notice,Agency staff and the Developer shall meet in good faith to consider,methods for improving the financial and operating status of the Development,including,without limitation,replacement of the Management Agent. If, after such meeting, Agency staff recommends in writing the replacement of the Management Agent,Developer shall promptly dismiss the then Management Agent,and shall appoint as the Management Agent a person or entity meeting the standards for a Management Agent set forth in Section 5.2 above and approved by the Agency pursuant to Section 5.2 above. Any contract for the operation or management of the Development entered into by Developer shall provide that the contract can be terminated as set forth above. Failure to remove the Management Agent in accordance with the provisions of this Section shall constitute default under this Agreement, and the Agency may enforce this provision through legal proceedings as specified in Section.6.8. 5.5. Avvroval of Management-Policies. The Developer shall submit its written management policies with respect to the Development to the Agency 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 PropgV Maintenance. The Developer agrees, for the entire Tenn of this Agreement, to maintain all interior and exterior improvements, including landscaping,on the Property in good condition and repair(and, as to landscaping,in'a healthy condition) and in accordance with all applicable laws,rules, ordinances, orders and regulations of all federal,state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments,bureaus, and officials, and in accordance with the following maintenance conditions: The Agency places prime importance on quality maintenance to protect its investment and to ensure that all Agency and Agency-assisted affordable housing projects within the Agency are not allowed to deteriorate due to below-average maintenance. Normal wear and tear of the Development will be acceptable to the Agency assuming the Developer agrees to provide all necessary improvements to assure the Development is maintained in good condition. The Developer shall make all repairs and replacements necessary to keep the improvements in good condition and repair. 320\07\166389.4 I� In the event that the Developer breaches any of the covenants contained in this section and such default continues for a period of ten (14)days after written notice from the Agency with respect to graffiti, debris, waste material, and general maintenance or thirty(30) days after written notice from the Agency with respect to landscaping and building improvements, then the Agency, in addition to whatever other remedy it may have at law or in equity, shall have 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,the Agency shall be pennitted(but is not required)to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property,in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the Agency and/or costs of such.cure,which amount shall be promptly paid by the Developer to the Agency upon demand. ARTICLE 6 MISCELLANEOUS 6.1 Condominium Conversion. The Owner shall not convert Development units to condominium or cooperative ownership or sell condominium or cooperative conversion rights to the Property during the Term of this Agreement. 6.2 Lease-Provisions. - The Developer shall-use a form of Tenant lease approved by the Agency, and will include the most restrictive lawful language required by any other controlling financing entity. The form of Tenant lease shall comply with all requirements of this Agreement and the DDLA and shall, among other matters: (a) provide for termination of the lease and consent by the Tenant to immediate eviction for failure: (1) to provide any information required under this Agreement or, reasonably requested by the Developer to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Development in accordance with the standards set forth in this Agreement, or(2)to qualify as a Thirty Percent Household,Forty- Five Percent Household,Very Low Income Household, or Sixty Percent Household, as the case may be, as a result of any material misrepresentation made by such Tenant with respect to the income computation or certification, (b) be for a term of not less than one(1)year, unless by mutual agreement between the Developer and the Tenant, and provide for no Rent increase during such year. The Developer will provide each Tenant with at least sixty(64) days'written notice of any increase in Rent applicable to such Tenant, and with such further notice as may be required by Section 2.3 above. 3201071166388.4 1-12 (c) include the nondiscrimination language required pursuant to Section 6.6(b)(2)of the DDLA. 6.3 Nondiscrimination. All of the Units shall be available for occupancy on a continuous basis to members of the general public who are senior households and are income eligible. The Developer shall not give preference to any particular class or group of persons in renting or selling the Units, except to the extent that the Units are required to be leased to Agency displacees,Thirty Percent Households, Forty-Five Percent Households,Very Low Income Households and Sixty Percent Households. There shall be no discrimination against or segregation of any person or group of persons,on account of race, color, creed,religion, sex, sexual orientation,marital status,national origin, source ofincome (e.g. SSI), ancestry,or disability,in the leasing, subleasing,transferring,use, occupancy,tenure, or enjoyment of any Unit nor shall the Developer or any person claiming under or through the Developer,establish or permit any such practice or practices of discrimination or segregation with reference to the selection,location,number,use,or occupancy,of tenants, lessees,sublessees,subtenants, or vendees of any Unit or in connection with the employment of persons for the construction,operation and management of any Unit. All deeds,leases or contracts made or entered into by the Developer as to the Units or the Development or portion thereof,shall contain covenants concerning discrimination as required by the DDLA. 6.4 Section 8-Certificate Holders. The Developer will accept as Tenants,.an the same basis as all other prospective Tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing housing program under Section 8 of the United States Housing Act, or its successor. The Developer shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective Tenants, nor shall the Developer apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective Tenants. 6.5 Term. The provisions of this Agreement shall apply to the Property for the entire Tenn even if the entire Agency Loan is paid in full prior to the end of the Term. This Agreement shall bind any successor,heir or assign of the Developer, whether a change in interest occurs voluntarily or involuntarily,by operation of law or otherwise, except as expressly released by the Agency. The Agency makes the Agency Loan on the condition, and in consideration of, this provision, and would not do so otherwise. 320\07\166389.4 1-13 6.6 Compliance with DDLA and Program Requirements. Developers actions with respect to the Property shall at all times be in full conformity with: (i) all requirements of the DDLA; and(ii)the California Community Redevelopment Law. 6.7 Notice of Expiration of Tenn. At least six(6)months prior to the expiration of the Term the Developer shall provide by first-class mail,postage prepaid, a notice to all Tenants containing(a)the anticipated date of the expiration of the Term,(b)any anticipated Rent increase upon the expiration of the Tenn, (c) a statement that a copy of such notice will be sent to the Agency, and(d) a statement that a public hearing may be held by the Agency on the issue and that the Tenant will receive notice of the hearing at least fifteen(15)days in advance of any such hearing. The Developer shall also file a copy of the above-described notice with the Redevelopment Director. 6.8 Covenants to Run With the Land. The Agency and the Developer hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land,and shall bind all successors in title to the Property,provided,however,that on the expiration of the Tenn of this Agreement said covenants and restrictions shall expire. Each and every contract,deed or other instrument hereafter executed covering or conveying the Property or any portion thereof,shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions,regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument,unless the Agency expressly releases such conveyed portion of the Property from the requirements of this Agreement. 6.9 Enforcement by the A eg, ncy. If the Developer fails to perform any obligation under this Agreement, and fails to cure the default within thirty(30) days after the Agency has notified the Developer in writing of the default or,if the default cannot be cured within thirty(30) days, failed to commence to cure within thirty(30) days and thereafter diligently pursue such cure within ninety(90) days,the Agency shall have the right to enforce this Agreement by any or all of the following actions, or any other remedy provided by law: (a) Callingthe Agency Loan. The Agency may declare a default under the Agency Note, accelerate the indebtedness evidenced by the Agency Note, and proceed with foreclosure under the Agency Deed of Trust. (b) Action to Compel Performance or for Damages. The Agency may bring an action at law or in equity to compel the Developer's performance of its obligations under this Agreement, and/or for damages. (c) Reinedies Provided Under DDLA. The Agency may exercise any other remedy provided under the DDLA. 320\07\166389.4 1-14 6.10 Attorneys Fees and Costs. In any action brought to enforce this Agreement,the prevailing party shall be entitled to all costs and expenses of suit,including attorneys'fees. This section shall be interpreted in accordance withCalifornia Civil Code Section 1717 and judicial decisions interpreting that statute. 6.11 Recording and Filing. The Agency and the Developer shall cause this Agreement, and all amendments and supplements to it,to be recorded in the Official Records of the County of Contra Costa. 6.12 GoveMing Law. This Agreement shall be governed by the laws of the State of California. 6.13 Waiver of Requirements. Any of the requirements of this Agreement may be expressly waived by the Agency in writing,but no waiver by the Agency of any requirement of this Agreement shall, or shall be deemed to,extend to or affect any other provision of this Agreement. 6.14 Amendments. This Agreement may be amended only by a written instrument executed',by all the parties hereto or their successors in title,and duly recorded in the real property records of the County of Contra Costa. 6.15 Notices. Any notice requirement set forth herein shall be deemed to be satisfied three(3)days after mailing of the notice first-class United States certifiers mail,postage prepaid, addressed to the appropriate party as follows: Developer: Resources for Community Development 2131 University Ave., Suite 224 Berkeley, CA 94704 Attention: Executive Director Agency: Contra Costa County Redevelopment Agency 651 Fine Street, 4t'Floor North Wing Martinez, CA 94553 Attention: Redevelopment Director 3201071166385.4 1-15 Such addresses may be changed by notice to the other party given in the same manner as provided above. 6.16 Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining portions of this Agreement shall not in any way be affected or impaired thereby. IN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement by duly authorized representatives,all on the date first written above. DEVELOPER: RESOURCES FOR COMMUNITY DEVELOPMENT,a California nonprofit public benefit corporation By: Its: AGENCY: CONTRA COSTA COUNTY REDEVELOPMENT AGENCY, a public body, corporate and politic By: Its: 320107\166368.4 1-16 STATE OF CALIFORNIA ) ss. COUNTSOF CONTRA COSTA } On , 200_,before me,the undersigned, a Notary Public,personally appeared ,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s) is/are subscribed to the within instrument,and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. STATE OF CALIFORNIA } ) ss. - COUNTY OF CONTRA COSTA )On , 200before me, the undersigned, a Notary Public,personally appeared personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/are subscribed to the within instrwnent, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. 320\07\186389.4 EXHIBIT A Legal Description of the Property 320107%166369A I-A-1 EXHIBIT J Agency Resolution 88-9 (Prevailing Wages) 320\07\161927.7 J-1 I � 1 { rHE BOARD OF SUPERVISORS OF CON A COSTA COUNTY, CALIFORNIA Adopted this Crder•ori-- -!July �.9, 19s8 ,by the following vote,; t AYES: Supervisors Powera, anden, McPeak, Torlakson, Schroder NOES: None I ABSENT: None ABSTA€N: None i i i SUBJECT": Establishing C.C.C. } RESOLUTION f.' RA, 8s-9 Redevelopmezit Agency Prevailing Wage Requirement ; } } The Board of Supervisors as the Contra Costa County Redevelopment Agency RESOLVES THAT t ; I. ,u,rpose. A prevalling Vale requirement is necessary to protect ,Agency project area job opportunities, stimulate the Project area economy aind'should be uniformly applied to all the project contracts it enters. es. revailina tuane ofran,eanta , The agency heresy adopts and establishes a prevailing wage requi ement policy standard to be incorporated in (and be part of) any contracts, agreements or leases it enters as folllowss (a) -Wages. All workers perfo ng construction work for the project pursuant t contracts, gxeements Or leases subject to this resolution, from the cozm8A ement of construction until the issuance of a final Certificat of Occupancy ar. acceptance by the Agency of the construction as mplete, shall be paid not less than the highest ' revailing ,r e' of per diem wages as determined and publishEd by the Ca ' ornia Department of Industrial Relations and its Direc . pursuant to Section 1773 of the Labor Code. Construction wor4. cludes all construction of building core and shelf, tenantint ovements .and public works that are within the customary juri iction of the construction trades and crafts, whether performs on or off-site. Off--site work, performed by Matorialmen, as fined under California Law, is not covered by thisl,resolution. (b) Coveracre. dere this re ution,a requirements are incorporated in Agency1contracts�, T,Icements or leases, they shall apply to the employees of an player including the developer, any tenant of the proje any general contractor or subcontractor or other contractoraged in construction for the Project by the developer, includin air successors and assignees, but shall not apply to errisory or managerialt personnel or to persons employed i the rental, operation or maintenance of the project. (c) e a e t f Sndustr a I t o rates for each employed covered by is resp utionva. shall-Llingbeathose wage rates as published by the Stat Department of Industrial Relations on the date *a employee ommences work. The employer shall be responsible fdr checking oft a quarterly basis whether the Department has determined that ihare has been an adjustment in the prevailing rate of per diem ages in the locality. In the event the Department has adjusted the prevailing rate, the employer shall pay suchirate, provided that in no event shall the employer pay less than the prevailing mate previously determined, said wage rates for alli.covered workers shall be posted in a Prominent, visible and site. easily accessible place on the Project i (d) o s The Esaplo r shall keep an accurate paYr'oll record as apecifed in Labor de Section 1776(a). Certified copies of the pa roll records hill be available for worker or Agency inspectir (in the fo specified in Labor Code § Labor Code $1775(d) ) a all reasons lo, hours at a local office of the Employer. copies of tie records sh .be provided upon request by a representative of the Agency I the Agency has or can obtain the s. Any woiker, his ou record fixed representative, or the public may reque t a copy of .. records from the Agency. Individual names addresses a social security numbers of employees shall be masked or s1loted so as to prevent disclosure in copies furnishred to the p Lic. Upon -request, a certified copy of an employee's payroll ,accord shall be made available to the ,requesting e�ployee. by th :employer as provided in Labor Code 5 1775(b)(1). The failural,of the e6ploy6t to keep accurate payroll records and provide cert�'�fied copies t+ ereof within 15 clays after a proper request t do no, shallcreate a presumption that prevailing wageslhave not been paid. (e) Appronticss. Nothing in this agreement shall prevent the employment of any number of properly registered apprentices, as defined: in Ch pter 4, Division 3 of the Labor Code. Every such apprentice hall be paid not lose than the standard wage paid to apprentices under the regulations of the crafts or trade at which he is employed, and shall be employed only at the work of the craft or trade to which he is registered. The employment and training of +Mach apprentice shall be in accordance with the provisions of th+ apprenticeship standards and apprentice agreements under which he is in training. (f) otif a ion. Agency staff shall notify all prospective bidd rs and contracting parties of the requirements of this resolution and ensure that its requirements are- incorporated into Agency contracts, agreements and leases. The contracting part (developer) shall cause the provisions of this resolution to be�incorporated.into each contract and subcontract, -and lease agreem nt which would' be subject to this resolution. In the event the provisions are not so incorporated, the developer shall be liable to the worker in any action or proceeding for toe difference between the prevailing wage rate required to be paid and the amount actually.paid to the worker, including costs ind attorneyifees, as if the developer where the actual. Employer. (g) Enforcement, in addition to any other rights provided by California law to recoverompensation, a worker that has been paid less than toe prevailing.lavage rates shall havea right to commence an actin or proceed ng against the employer of the worker for the difference bet eon the prevailing-wage .rates and the amount paid to such works ,for each calendar day or portion thereof for which the worker was paid less than the issue other than that of thelliability of the employer for the amount of unpaid wages all.gedly due shy ll be determined in such action or proceeding, and tshe burden s ll' be on the employer to establish that the amounts demanded ar not due. tiA. worker recovering any or all of the wades claimed t be due shall recover his costs and attorney fees inlsecuring sud recovery. Nothinq in this section shall preclude its enforcomeh. by the California Division of Labor Standards Enforcement. } These prevailing wage requirements will be monitored and adminie erect by the Agency's staff. (h) .,c,eL.st, ons This 11 olution's prevailing wage requirements shall not applyr 1.. To tenant impr ants with a value of less than $50,000.00, nor to tenant im vements for which the initial building permit for such wor 4s issued more than one year after a certificate of ;occupancy i pproved six the core and shell or i i . i i accepted by the Agency as complete. The $50,000.00 value shall be adjusted annualli pursuant -to the Consumer Price Index for the San Francisco/Oakland SMSA. The staff of the Agency shall report to the Agency on th6 effects of ,the prevailing wage requirement for tenant improvements after one,year of operation. 2. To landscaping improvements with a value of less than $50,000.00 in"alled on anyarticular-contrascting (developer) party's premises durl�g any one year period. 3. Nan-substantive ams dments to Agency agreements in force on the date of adoption of his resolution provided the' estimated value doesn't exceed $5 ,{00.00 for any new improvements allowed by the amen ents to any agreement. (i) Agency and County Not U a` a in Money D a es. In undertaking to impose on. its con acting 'parties and their subcontractors thislresolution's +pquirements to pay prevailing rates of wages, the Agency and C ty of Contra Costa are assuming an undertaa3kling only to ; genote the general welfare. They are not assumiAg, nor are th y imposing on their officers and employees, an o�.ligation for rgach of which-they are liable in mangy damages to Jany'parson w claims that such breach proximately caused injury. ( . (j) Pre-emxticn. This o n ci t ce shall not .confer upon the Agency or any officer thereof an owner not otherwise provided by law to determine they legality of y collective bargaining agreement, nor `shall� anything in is ordinance be interpreted or applied so as to creftte any Powe r duty in conflict with the pre-emptive effectiveness of any oral or state law. (k) ever. If any or provision of this resolution or the aplication tH o€ to any person or circumstance is heldrto be inval the remainder of the resolution, including the applic ion of such part or provision to other persons or circumstance shall not be affected thereby and shall continue in full -force nd effect. To this end, the provisions of this resolution are severable. orig. Dept.: ` cc: tfiereby Certify that this to a true and eotreet Copy of an action taken and entered on the minutes of the i Board of nowdas on ft data shown. , A'E7lEs'i'Et7; PHIL 7CH R,Clerk of the Board i of supgrvlsors and County Administrator i BY ,Deputy i i I i j RESOLUTION No. RA 88-9 , i EXHIBIT K. Infrastructure Improvements 3201071161927.7 K-1 Exhibit L Form of Certificate of Completion RECORDED REQUESTED BY ANIS WHEN RECORDED MAIL TO: Contra Costa County Redevelopment Agency 6151 Pine Street, North Wing,4th Floor Martinez, CA 94533 Attention: Redevelopment Director DOCUMENT ENTITLED TO RECORDING WITHOUT FEE PURSUANT TO GOVERNMENT CODE SECTION 27383 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) CERTIFICATE OF COMPLETION The Contra Costa County Redevelopment Agency, a public body corporate and politic (the „Agency"),hereby certifies that(i) _ "Developer"),has met the obligations of the Developer under Article 5 Qf the DisposiTion; Development and Loan Agreement dated March ,2003 between the Agency,Resources for Community Development and.The O'Brien Group{the"DDLA"); and(ii)the Developer has completed construction of in compliance with the DDLA. The real property on which the are located and to which this Certificate pertains is described in the legal description attached hereto as Exhibit A. This Certificate shall not be deemed a notice of completion under the California Civil Code, nor shall it constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a deed of trust securing money to finance the or evidence of satisfaction of any requirements with respect to payment of prevailing wages for the construction of the Capitalized terms used in this Certificate which are not defined herein shall have the meanings given such ten-ns in the DDLA. Dated: , 20_ CONTRA COSTA COUNTY REDEVELOPMENT AGENCY, a public body corporate and politic 320\071166417.1 2110103 DISPOSITION, DEVELOPMENT AND LOAN AGREEMENT BETWEEN THE CONTRA COSTA COUNTY REDEVELOPMENT AGENCY, RESOURCES FOR COMMUNITY DEVELOPMENT, AND THE O'BRIEN GROUP (BAY VIEW COMMUNITY HOUSING) Dated as of '2003 3201471169927.9 TABLE OF CONTENTS Page ARTICLE 1 DEFINITIONS AND EXHIBITS................................................ .......................... 2 Section1.1 Definitions .................................................................... .......................... 2 Section1.2 Exhibits......................................................................... .......................... 8 ARTICLE 2 PREDISPOSITION REQUIREMENTS....................................... .........................9 Section 2.1 Conditions Precedent to Disposition of Property ........... ........................... 9 Section 2.2 Schematic Design Plans................................................. ..... .............. 10 Section 2.3 Final Development Plan,Final Subdivision:Map,and General,Plan Amendment... ......... ............................................. . ..... .............. 10 Section 2.4 Other Governmental Approvals................... ......................................... 10 Section 2.5 Apartment Development Funding Applications....................................... 10 Section 2.6 Apartment Financing Plan................ ......................... ........ .............. 11 Section 2.7 Single Family Financing Plan........................................ ....................... 12 Section 2.8 Evidence of Availability of Funds............................................................ 13 Section 2.9 Construction Plans......................................................... ....................... 13 Section 2.10 Right of Entry to Perform Studies. ................................. . ....................... 14 Section 2.11 Agency Acquisition of Additional Parcels ............................................... 14 Section 2.12 Reciprocal Easement Agreement.............................................................. 15 ARTICLE 3 DISPOSITION OF PROPERTY............................................................................. 15 Section 3.1 Sale and Purchase ........................................................... ...................... 15 Section 3.2 Purchase Price................................................................. ...................... 15 Section 3.3 Opening Escrow........................................................................................ 16 Section 3.4 Close of Escrow for Apartment Site......................................................... 16 Section 3.5 Close of Escrow for Single Family Site.................................................... 18 Section 3.6 Condition of Title............................................................. : ...................... 19 Section 3.7 Condition of Property ................... ................................ : . ............ 20 Section 3.8 Casts of Escrow and Closing...:................................................................ 20 ARTICLE 4 AGENCY AGENCY LOAN................................................................................... 21 Section4.1 Amount............................................................................ ..................... 21 Section4.2 Repayment. ............................................................................................... 23 Section4.3 Prepayment ...............................................................................................26 Section4.4 Assumption...................................................................... ..................... 26 Section 4.5 Security for Agency Agency Loan............................................................21 Section 4.6 Subordination of Agency Deed of Trust............................ ...................... 26 Section 4.7 Subordination of Regulatory Agreement........................... ...................... 26 ARTICLE 5 CONSTRUCTION OF IMPROVEMENTS............................................................ 26 Section 5.1 Construction Pursuant to Plans.......................................... ...................... 26 3201071161827.9 TABLE OF CONTENTS � rmgo Section 5.2 Infrastructure Improvements..................................................................... 27 Section 5.3 Change iDConstruction of Pursuant to Laws.......................................................................................................... 28 Section 5'4 Construction Contracts ..............................,......-..-..-~....-.^.... 28 Section 5.5 Commencement of CoD@tDzctioUz. ............................................................ 29 Section 5.6 Completion of the Improvements. ............................................................29 Section 5.7 Equal Opportunity^^'.~.....^.^.^...`^._..^...,.~...^.-..-.^^` ......................... Section 5.8 Prevailing Wage Requirement..._..................~................,....... 2q Section 5.9 Minority and Contractors....~...........^...............^. 30 Section 5.10 Certificates of .....~.........,.....~.............-. 30 Section 5.11 Construction Completion Guarantees.......................... ............................ 3l ! Section 5.12 Developer Fee................................................................. ......................... 31 Section 5.13 Plan................................................. 3l � ARTICLE 6 ONGOING ........................................................... 32 � Section 6.1 Applicability.-...._,.......~,~._.~.........-^......~.'.'^~^..'-.^'^^-^'~- 32 / Section t.2 Use............................................................................................................ 32 � Section 6.3 Maintenance~.~...,...,.~...........~.,...,...-...,,.'..~..^'.'.^~~`.^.,''.-^` 32 � Section 6.4 Property Tax Exemption............._....._~.,...,........~.-........,..' ]3 � Section 6.5 Taxes and Assessments....~...~........ ..................................................... 33 Section 6.6 io/�� Leases and � ^..�~.�~.� �.^�.�.�~ ~�~~~���. _~�-_-° � C0DtractD. .................................................................................................. 33 � Section 6.7 Hazardous Materials. ._...^.,.,.~..............-..............-......-....... 35 Section 6.8 Insurance Requirements.......,.........~....-..-....-............--....... 37 � ARTICLE ASSIGNMENT AND TRANSFERS -.--.-.-'.......--.-----...-'..-.-.....---. 38 Section7.1 Definitions ................................................................................................ 38 � Section 7.2 Purpose ofRestrictions OuTransfer.......................................................... ]4 � Section 7.3 Prohibited Transfers..................................................................................40 � Section 7.4 Permitted Transfers................................................................ .................. 40 ` Section 7.5 Effectuation VfCertain Permitted Transfers.............................................41 , � Section 7.6 Other Transfers with Agency Consent...................................................... 4l Section 7.7 Special Remedy for Prohibited Transfer................................................... 42 , � � ARTICLE 8DEFAUl~T AND REMEDIES................................................................................. 42 � ' Section 8.1 General Applicability----.........-...^~.._'^.^.....~.-.......,~'_, 42 � Section 8.2 No Fault ufParties.....................................................^.............................. 42 Section 8,3 Fault of Agency..,.,..-........-_.....,.~......._....-...........-..,... 44 � Section 8.4 Fault of Developers'_........-.........~_.-..'...,_....-.....~.....-.. 44 ! Section 8.5 Right of Reverter.............. ............ ........................................................... 47 Section 8.6 Acceleration of Agency Note.................. ................................................. 48 ! Section 8.7 Rir6t1O��D� O1 ....-......^..^,-...-....-...... 48 � - - 4� ��CL�o�� � ��o�8 . . . .- -..^.-.._.,^-.-^.-. � , Construction .......'..-....~...~.. ... ' .. . �- TABLE OF CONTENTS Page Section 8.9 Rights of Mortgagees........................ ........... ...........................................48 Section 8.10 Remedies Cumulative ..... ........................................................................48 Section 8.11 Separation of Defaults and Remedies............ ..........................................49 Section 8.12 Waiver of Terms and Conditions.............................................................. 50 ARTICLE 9 SECURITY FINANCING AND RIGHTS OF HOLDERS ............ ....................... 50 Section 9.1 No Encumbrances Except for Development Purposes ............................. 50 Section 9.2 Holder Not Obligated to Construct........................................................... 50 Section 9.3 Notice of Default and Right to Cure......................................................... 51 Section 9.4 Failure of Holder to Complete Improvements...... ................................... 51 Section 9.5 Right of Agency to Cure............................................................................ 51 Section 9.6 Right of Agency to Satisfy Other Liens.................................... .............. 52 Section 9.7 Holder to be Notified................................................................................ 52 Section 9.8 Additional Mortgagee Protections............................................................ 52 ARTICLE 10 GENERAL PROVISIONS .................................................................................... 52 Section 10.1 Notices,Demands and Communications.................................................. 52 Section 10.2 Non-Liability of Agency Officials,Employees and Agents..................... 53 Section10.3 Forced Delay............................................................................................. 53 Section 10.4 Inspection of Books and Records ............................................................. 53 Section 10.5 Provision Not Merged with Deeds............................................................. 54 Section 10.6 Title of Parts and Sections......................................................................... 54 Section 10.7 General Indemnification.................................................. . .......... ............... 54 Section10.8 Applicable Law............................................................ .........I.................. 54 Section 10.9 No Brokers............................................................. *.............. 54 Section 10.10 Severability............................................................ ............... 54 Section 10.11 Legal Actions......................................................... ............. 54 Section 10.12 Binding Upon Successors...................................... ............. 55 Section 10.13 Parties Not Co-Venturers....................................... .............. 55 Section 10.14 Warranties................ ............................................. ............... 55 Section 10.15 Time of the Essence.................................................................................. 55 Section 10.16 Action by the Agency....... .............................................. .................I...... 55 Section 10.17 Identity and Authority of Developers....................................................... 56 Section 10.18 Complete Understanding of the Parties .................................................... 56 Section 10.19 Conflict Among Agency Documents........................................................ 56 Section 10.20 Entry by the Agency........... ..................................................................... 56 Section 10.21 Assignment To County............................................................................. 57 Section 10.22 Recordation of Agreement........................................................................ 57 Exhibit A: Legal Description of the Property Exhibit B: Map Showing Location of the Property and the General Designation of the Apartment Site, and the Single Family Site, 3201071161927.9 ill ..... ............ ...... TABLE OF CONTENTS Page Exhibit C-1: Financing Proposals(Apartment Improvements) Exhibit C-2: Financing Proposals(Single Family Improvements) Exhibit D-1: Development Schedule(Apartment Improvements) Exhibit D-2: Development Schedule(Single Family Improvements) Exhibit E-1: Final Development Plan(Apartment Improvements) Exhibit E-2: Final Development Plan(Single Family Improvements) Exhibit F-1: Form of Agency Grant Deed(Apartment Improvements) Exhibit F-2: Form of Agency Grant Deed(Single Family Improvements) Exhibit G: Form of Agency Note Exhibit H: Form of Agency Deed of Trust Exhibit I: Regulatory Agreement and Declaration of Restrictive Covenants Exhibit J: Agency Resolution 88-9(Prevailing Wages) Exhibit K: Infrastructure Improvements Exhibit L: Form of Certificate of Completion 32=7\161927.9 iv REQUEST TO SPEAK TORM 62... (THREE (3) xrNtTR LIMIT) <:ZN Complete this form and place it in the box near the speakers-* rostrum before addressing the Board. Name: - s .sPhone.- 510 Rq t- q f 0 X Address: c 7 3.2-�asll 1ae t, Citk-L I c Y I an speaking for myself or organization: .99 . (raw of orvanintion) CSECX ONE: I wish to speak on Agenda Item . Bate: t My comments will be: general for -. against I wish to speak ren the subject of I do not wish to speak but leave these comments for the Board to consider REQUEST TO SPEAK FORM .::: �' (THREE (3) MINUTE LIMIT) Complete this form and glace it in the box near the speakers' rostrum before addressing the Board.;, Name: r.,4-:1'�, t Phone Ad+3ress. / rrtl city: wd I am speaking for myself or organization: r i e,, J c '' (nrae of or issL cn) CBMCZ OMS' I wash to speak on Agenda Item # Date: 26 1 (� My comments will be: general for against _. .. I wish to speak on the subject of I do not wish to spear but leave these comments for the Board to consider: LEGAL NOTICE PUBLIC HEARING CONTRA COSTA COUNTY REDEVELOPMENT AGENCY AND THE COUNTY OF CONTRA COSTA (Bay View Community Housing) NOTICE IS HEREBY GIVEN that the Contra Costa County Redevelopment Agency (the "Agency„) and the Contra Costa County Board of Supervisors will hold a joint public hearing on Tuesday,March 11,2003 at 9:30 a.m. in the Board of SupervisorsChambers,Room 107 located in the McBrien Administration Building at 651 Pine Street,Martinez,California 94553. The hearing may be continued from time to time until completed. Any person desiring the opportunity to be heard will be afforded an opportunity to do so. The purpose of this hearing is to consider approval of a Disposition,Development and Loan Agreement(the "Agreement") governing the proposed sale of ten parcels of land owned by the Agency(the"Site")to Resources for Community Development, a California nonprofit public benefit corporation and The O'Brien Group,a California corporation for development of 120 units of housing, and related parking., landscaping and other ancillary facilities. The Site under consideration for sale by the Agency comprises approximately 9.22 acres, generally located between Pullman Avenue,Bella Monte Avenue,Fairview Street and Willow Pass(toad in Bay Point. The Agreement also authorizes an acquisition and development loan by the Agency to Resources for Community Development and use of Agency tax increment funds to pay a portion of the costs of public roads and other public improvements required for the development of the Site. A mitigated negative declaration(the "Mitigated Negative Declaration")has been prepared by the Agency and the County to serve as the environmental documentation under the California Environmental Quality Act for the redevelopment of the Site as contemplated in the Agreement. The Mitigated Negative Declaration was prepared in connection with the approval by the County of the General Plan Amendment, Subdivisions and Final Development Plans for the Site. The County and the Agency intend to use the Mitigated Negative Declaration as the environmental documentation for purposes of compliance with the California Environmental Quality Act in their consideration of approval of the Agreement. Any and all persons having any objections to the proposed Agreement,',or to the proposed sale of the Site and the development of the improvements on the Site as summarized above, or to the use of the Mitigate Negative Declaration for the purposes described above,'or who deny the regularity of this proceeding or wish to speak on any issue raised by the Agreement or the Mitigated Negative Declaration may appear at the hearing and will be afforded an opportunity to state their objections. If any person desires to challenge in court the approval and execution of the proposed 3241071166375.1 313703 Agreement, the proposed sale of the Site, or any proceedings in connection therewith,they may be limited to raising only those issues that they or someone else raised at the hearing described in this notice,or in written correspondence delivered to the Agency or the Country at, or prior to,the hearing. As required by Section 33433 of the Health and Safety Code, copies of the Disposition, Development and Loan Agreement and the summary of the proposed transaction are available at the offices of the Agency at 651 Pine Street,North Wing, 4th Floor,Martinez,,California, 94553, for public inspection and copying at a cost not to exceed the cost of duplication. Further information regarding this hearing may be obtained by contacting Maureen Toms, Redevelopment Project Manager, at(925) 335-1250. Publication Dates: February 25, 2003 March 4, 2003 320\0713 66375.1 3/3/03