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HomeMy WebLinkAboutMINUTES - 04142007 - C.83 Contra _ . TO: BOARD OF SUPERVISORS _ Costa FROM: Dennis M. Barry, AICP xy v °4 County Community Development Director DATE: August 14, 2007 C SUBJECT: APPROVAL OF LEGAL DOCUMENTS AND CEQA DETERMINATION FOR VIRGINIA STREET APARTMENTS IN RICHMOND SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: (1) AUTHORIZE the Deputy Director, Redevelopment or his designee to execute required legal documents to provide $564,332 in FY 2006/07 Mental Health Services Act (MHSA) to Rubicon Programs, Inc, a California nonprofit public benefit corporation, for the Virginia Street Apartments affordable housing project in Richmond; and (2) FIND, the project is exempt from the California Environmental Quality Act pursuant to Section 15301(d) of the CEQA guidelines; and (3) DIRECT the Community Development Director, or designee, to file a Notice of Exemption for this project with the County Clerk; and (4) DIRECT the Community Development Director, or designee, to arrange for payment of the $50 handling fee to the County Clerk for filing such Notice of Exemption. CONTINUED ON ATTACHMENT: ® YES ❑ NO SIGNATURE _,RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMM ION OF ARD COMMITTE APPROVE OTHER r SIGNATURE(S)q. �_�_ ACTION OF BO R ON 4 7 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND �JNANIMOUS (ABSENT CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. Contact: Kara Douglas (925/335-7223) ATTESTED 14 cc: Community Development Department (CDD) JOH ULLEN, CLERK O THE County Counsel BOARD OF SUPERVISORS AND Auditor-Controller COUNTY ADMINISTRATOR Rubicon via CDD / BY o( ktxc DEPUTY Virginia Street Legal Documents August 14, 2007 Page 2 FISCAL IMPACT: No General Fund impact. MHSA funds are provided to the County on a formula allocation basis through the State Department of Mental Health. BACKGROUND/REASONS FOR RECOMMENDATIONS: On May 15, 2007, the Board of Supervisors allocated $564,332 to Rubicon Programs to rehabilitate the Virginia Street Apartments in Richmond. Rubicon operates the program as permanent supportive housing for adults with mental illnesses. The County legal documents for this project will include the following (the "Loan Documents"): • MHSA Grant Agreement • Deed of Trust with Assignment of Rents and Security Agreement • Regulatory Agreement and Declaration of Restrictive Covenants The authority granted hereunder to the Deputy Director-Redevelopment, or designee, includes authorization to execute any and all documents and to take any and all actions necessary to implement the activities authorized under the Loan Documents, including execution of loan amendments or modifications for the purposes of agreeing to reasonable extensions of time deadlines, and estoppel certificates concerning the status of the loan and the existence of Borrower defaults-under the Loan Documents. Attachments: County Notice of Exemption On file with Clerk of the Board: MHSA Grant Agreement Deed of Trust with Assignment of Rents and Security Agreement Regulatory Agreement and Declaration of Restrictive Covenants V2 Agenda DateJ �`( — 7 Item No.: Subject: o � CLQ Presenter: d L �5 �) d a y Nw�-, A r �- Ap-enda Clerk's Note: ❑ Background not available at the time the agenda packet was compiled ❑ Information for this item was previously furnished (Date: ) ❑ Oral Report to be given at the Board Meeting ❑ Error in numbering agenda items ❑ Deleted n M Documents on file with the Clerk of the Board--,-,. RQ-94 1 JU� -y e D h S♦Y y t}1 b ti d o-a.1, o-f T Y b11�) Re V o C.c- l� CD r a,,%,t- A ❑ Document or attachments included separate from this packet (voluminous/bound/oversize%olor pages, etc.) CALIFORNIA ENVIRONMENTAL QUALITY ACT Notice of Exemption Contra Costa County Community Development Department 651 Pine Street, 4th Floor - North Wing, McBrien Administration Building Martinez, CA 94553-0095 Telephone: (925) 335-7223 Contact Person: Kara Douglas Project Description:City of Richmond—Virginia Street Apartments rehabilitation,County File #MHSA 2007-2. The County is providing$564,332 in State Mental Health Services Act(MHSA) program funds,to Rubicon Programs to rehabilitate an existing six unit apartment building located at 909-919 Virginia Avenue, Richmond.This project involves roof replacement, driveway and sidewalk repair, bathroom/kitchen cabinet replacement,kitchen appliance replacement,exterior/interior paint, window and floor replacement. Project Location: The subject building is located at 909-919 Virginia Avenue, Richmond, CA 94801 This project is exempt from CEQA as a: Ministerial Project (Sec. 15268) x Other Statutory Exemption, Section 15301 d Declared Emergency(Sec. 15269(a)) _ General Rule of Applicability(Section 15061(b)(3) Emergency Project (Sec. 15269(b) or(c)) Categorical Exemption, for the following reason(s): This activity is Categorically Exempt and not subject to the California Environmental Quality Act(CEQA) pursuant to Article 19,Section 15301(d)_of the CEQA Guidelines. It can be seen with certainty that there is no possibility that the activity may have a significant adverse effect on the environment. Date: By: Community Development Department Representative AFFIDAVIT OF FILING AND POSTING I declare that on I received and posted this notice as required by California Public Resources Code Section 21152(c). Said notice will remain posted for 30 days from the filing date. Signature Title Applicant: Kara Douglas Community Development Department 2530 Arnold Drive, Suite 190 Martinez, CA 94553 County Clerk Fee$50 Due A:\SMSTNOE.FRM (Form Revised 2/97) st ` Contra TO: BOARD OF SUPERVISORS _ Costa FROM: Dennis M. Barry, AICP �'� To County Cd % Community Development Director fryo�KT� DATE: August 14, 2007 SUBJECT: APPROVAL OF LEGAL DOCUMENTS AND CEQA DETERMINATION FOR VIRGINIA STREET APARTMENTS IN RICHMOND SPECIFIC REQUEST(S),OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS: (1) AUTHORIZE the Deputy Director, Redevelopment or his designee to execute required legal documents to provide $564,332 in FY 2006/07 Mental Health Services Act (MHSA) to Rubicon Programs, Inc, a California nonprofit public benefit corporation, for the Virginia Street Apartments affordable housing project in Richmond; and (2) FIND, the project is exempt from the California Environmental Quality Act pursuant to Section 15301(d) of the CEQA guidelines; and (3) DIRECT the Community Development Director, or designee, to file. a Notice of Exemption for this project with the County Clerk; and (4) DIRECT the Community Development Director, or designee, to arrange for payment of the $50 handling fee to the County Clerk for filing such Notice of Exemption. CONTINUED ON ATTACHMENT: ® YES ❑ NO SIGNATURE Glit�� RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMION OF ARD COMMITT E APPROVE OTHER SIGNATURE(S): 7 . ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE AND UNANIMOUS (ABSENT CORRECT COPY OF AN ACTION TAKEN AND AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. Contact: Kara Douglas (9251335-7223) ATTESTED cc: Community Development Department (CDD) JOHN CULLEN, CLERK OF THE County Counsel BOARD OF SUPERVISORS AND Auditor-Controller COUNTY ADMINISTRATOR Rubicon via CDD I ''l Gt✓Cr� �' BY - ------. _ --- T_� DEPUTY I � C!>10<4 53 I • C- z 4C2, i dr I Virginia Street Legal Documents August 14, 2007 Page 2 - FISCAL IMPACT: No General Fund impact. MHSA funds are provided to the County on a formula allocation basis through the State Department of Mental Health. BACKGROUND/REASONS FOR RECOMMENDATIONS: On May 15, 2007, the Board of Supervisors allocated $564,332 to Rubicon Programs to rehabilitate the Virginia Street Apartments in Richmond. Rubicon operates the program as permanent supportive housing for adults with mental illnesses. The County legal documents for this project will include the following (the "Loan Documents"): • MHSA Grant Agreement • Deed of Trust with Assignment of Rents and Security Agreement • Regulatory Agreement and Declaration of Restrictive Covenants The authority granted hereunder to the Deputy Director-Redevelopment, or designee, includes authorization to execute any and all documents and to take any and all actions necessary to implement the activities authorized under the Loan Documents, including execution of loan I amendments or modifications for the purposes of agreeing to reasonable extensions of time deadlines, and estoppel certificates.concerning the status of the loan and the existence of Borrower defaults under the Loan Documents. Attachments: County Notice of Exemption On file with Clerk of the Board: MHSA Grant Agreement Deed of Trust with Assignment of Rents and Security Agreement Regulatory Agreement and Declaration of Restrictive Covenants i i i i i i i i i V2 CALIFORNIA ENVIRONMENTAL QUALITY ACT Notice of Exemption Contra Costa County Community Development Department 651 Pine Street, 4th Floor - North Wing, McBrien Administration Building Martinez, CA 94553`0095 Telephone: (925) 335-7223 Contact Person: Kara Douglas Project Description:City of Richmond—Virginia Street Apartments rehabilitation,County File #MHSA 2007-2. The County is providing$564,332 in State Mental Health Services Act(MHSA) program funds,to-Rubicon Programs to rehabilitate an existing six unit apartment building located at 909-919 Virginia Avenue, Richmond.This project involves roof replacement, driveway and sidewalk repair,bathroom/kitchen cabinet replacement,kitchen appliance replacement,exterior/interior paint, window and floor replacement. Project Location: The subject building is located at 909-919 Virginia Avenue, Richmond, CA 94801 This project is exempt from CEQA as a: Ministerial Project (Sec. 15268) x Other Statutory Exemption, Section 15301 d Declared Emergency(Sec. 15269(a)) _ General Rule of Applicability(Section 15061(b)(3) Emergency Project (Sec. 15269(b) or(c)) Categorical Exemption, for the following reason(s): This activity is Categorically Exempt and not subject to the California Environmental Quality Act(CEQA)pursuant to Article 19, Section 15301(d)_of the CEQA Guidelines. It can be seen with certainty that there is no. possibility that the activity may have a significant adverse effect on the environment. Date: By: Community Development Department Representative AFFIDAVIT OF FILING AND POSTING I declare that on I received and posted this notice'as required by California Public Resources Code Section 21152(c). Said notice will remain posted for 30 days from the filing date. Signature Title Applicant: Kara Douglas Community Development Department 2530 Arnold Drive, Suite 190 Martinez, CA 94553 County Clerk Fee $50 Due A:\SMSTNOE.FRM (Form Revised 2/97) NO FEE DOCUMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Contra Costa County Community Development Department 2530 Arnold Drive, Suite 190 Martinez, CA 94553 Attn: Deputy Director- Redevelopment No fee for recording pursuant to Government Code Section 27383 REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (Virginia Street Apartments MHSA Grant) This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") is made and entered into as of , 2007, by and between the County of Contra Costa, a political subdivision of the State of California("County"), and Rubicon Programs, Inc., a California nonprofit public benefit corporation (the "Grantee"). RECITALS 1. Pursuant to the Grant Agreement (as defined in Section .l.l) the County will provide to Grantee a grant of Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,332) in Proposition 63 (2004) Mental Health Services-Act funds ("MHSA") for the parcel at 909-919 Virginia Street, in Richmond, Contra Costa County, as more particularly described in Exhibit A attached hereto (the "Property") and to rehabilitate the six (6) residential unit building and related improvements thereon, all of which will be assisted by the County (the "Development"). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Grant Agreement. 2. The County Grant is funded with "one-time funds" funds from the California Department of Mental Health, ("DMH") pursuant to Proposition 63, the Mental Health Services Act ("MHSA Funds"). Such funds must be used by the County in accordance with Proposition 63 and California Code of Regulations Title 9, Chapter 14. 3. The use of MHSA Funds in accordance with this Agreement is consistent with the non-supplant requirements of the Act in that the funds will expand mental health services and/or program capacity for persons with severe mental illness who are unserved or underserved. Additionally, no other County mental health dollars are available to ensure that the Development remains as decent, safe and sanitary housing for persons with severe mental illness who are 863'\72\465516.1 unserved or underserved. The use of MHSA Funds in accordance with this Agreement is also consistent with the County's "Community Planning Process" and the "Three-Year Program and Expenditure Plan submitted by the County to DMH, both of which are required by California Code of Regulations Title 9, Chapter 14. 4. The County has agreed to make the County Grant to the Grantee 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 Grant Agreement. 5. In consideration of receipt of the County Grant, the Grantee has further agreed to observe all the terms 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 County and the Grantee wish to enter into this Agreement. THEREFORE, the County and the Grantee 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, pursuant to Section 50093 of the Health and Safety Code, the total anticipated annual income of all persons in a household as calculated in the manner prescribed pursuant to Title 25, Section 6914 of the California Code of Regulations. (c) "Assumed Household Size" shall mean the following assumed household sizes to be utilized to calculate allowable rents hereunder:' one bedroom, two persons; two bedrooms. three persons; three bedrooms, four persons. (d) "Agreement" shall mean this Regulatory Agreement and Declaration of Restrictive Covenants. (e) "Completion Date" shall mean the date of issuance by County of a certificate of occupancy for the Development. 863\72\465516.1 1 (f) "County-Assisted Units" shall mean the six (6) Units designated as assisted by the County. (g) "County Deed of Trust" shall mean the deed of trust dated , among the Grantee, as trustor, Title Company, as trustee, and the County, as beneficiary, on the Property which secures repayment of the County Grant and the performance of the Grant Agreement and this Agreement. (h) "County Designee" shall mean a social service provider designated by the County in writing as a person or entity qualified to determine MHSA Eligibility for Tenants in the Development. (i) "County Grant" shall mean all funds granted to Grantee by the County pursuant to the Grant Agreement. (j) "Development" shall mean the Property and the six (6) residential unit building and related improvements located thereon. (k) "DMH" shall. mean the California Department of Mental Health. (1) "Grant Agreement" shall mean the MHSA Revocable Grant Agreement entered into by and between the County and the Grantee, dated , 2007. (m) "HUD" shall mean the United States Department of Housing and Urban Development. (n) "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 HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the County shall provide the Grantee with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD. (o) "MHSA" or the "Act" shall mean California's Proposition 63, the Mental Health Services Act. Proposition 63 was passed by the voters of the State of California in November of 2004. (p) "MHSA Eligible" shall mean certified by the County or the County Designee as having a serious mental illness as defined in Welfare and Institutions Code Section 5600.3(a)(b) and (c), Unserved or Underserved, and eligible to occupy a unit financed with MHSA funds. An "MHSA Eligible Tenant" shall mean a Tenant where one or more members of the household are MHSA Eligible. (q) "Property" shall mean the real property described in Exhibit A attached hereto and incorporated herein. 3 863\72\465516.1 (r) "Rent" shall mean the total of monthly payments by a Tenant 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 Grantee which are required of all Tenants, other than security deposits; an allowance for 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 Grantee, and paid by the Tenant. (s) "Social Services Plan" shall mean the Social Services Plan prepared by Grantee and approved by County pursuant to Section 3.8 of the Grant Agreement. (t), "Tenant" shall mean the tenant household legally occupying a Unit. (u) "Term" shall mean the term of this Agreement, which shall commence on the date of this Agreement and shall continue for forty (40) years. (v) "Underserved" shall have the meaning set forth in Section 3200.300 of California Code of Regulations Title 9, Chapter 14 or successor regulation thereto. In the event that DMH no longer publishes the definition of Underserved, the County shall provide the Grantee with a definition of Underserved which is reasonably similar to the DMH definition in effect as of the date of this Agreement. (w) "Unit(s)" shall mean one (1) or more of the units in the Development occupied by or available to Tenants. (x) "Unserved" shall have the meaning set forth in Section 3200.310 of California Code of Regulations Title 9, Chapter 14. In the event that DMH no longer publishes. the definition of Unserved, the County shall provide the Grantee with a definition of Unserved which is reasonably similar to the DMH definition in effect as of the date of this Agreement. (y) "Very Low Income Rent" shall mean the maximum allowable rent for a Very Love Income Unit pursuant to Section 2.2(a) below. (z) "Very Low Income Tenant" shall mean a Tenant with an Adjusted Income which does not exceed fifty percent (50%) of Median Income, adjusted for Actual Household Size. (aa) "Very Low Income Units" shall mean the Units which, pursuant to Section 2.1 below, are required to be occupied by Very Low Income Tenants. 4 863\72\465516.1 ARTICLE 2 AFFORDABILITY AND OCCUPANCY COVENANTS 2.1 Occupancy Requirements. All of the County-Assisted Units shall be rented to and occupied by or, if vacant, available for occupancy by Very Low Income Tenants who are also MHSA Eligible Tenants. 2.2 Allowable Rent (a) Very Low-Income Rent. Subject to the provisions of Section 2.3 below, the Rent paid by Tenants of the Very Low Income Units shall not exceed the lesser of(1) thirty percent (30%) of one-twelfth (1/12`h) of thirty percent (30%) of fifty percent (50%) of Median Income, adjusted for Assumed Household Size or (2) thirty (30%) of the Tenant's monthly Adjusted Income. (b) County Approval of Rents. Initial Rents for all County-Assisted Units shall be approved by the County prior to occupancy. All Rent increases shall also be subject to County approval. The County shall provide the Grantee with a schedule of maximum permissible Rents for the County-Assisted Units annually. 2.3 Increased Income of Tenants. (a) Non-Qualifying Household. If, upon recertification of the income of a Tenant of a County-Assisted Unit, the Grantee determines that a former Very Low-Income Tenant, has an Adjusted Income exceeding the maximum qualifying income for a Very Low- Income Tenant, such Tenant shall be permitted to continue occupying the Unit, and the Grantee shall rent the next available Unit to a Very Low-Income Tenant, to meet the requirements of Section 2.1 above. (b) Termination of Occupancy. Upon termination of occupancy of a County- Assisted Unit by a Tenant, such Unit shall be deemed to be continuously occupied by a Very Low-Income Tenant, who is also MHSA Eligible, until such Unit is reoccupied, at which time the Unit shall be rented to a Very I,ow-Income Tenant, who is also MHSA Eligible. ?.4 MHSA Eligibility. Each Tenant household occupying a County-Assisted Unit must include at least one MHSA Eligible member and such member must occupy the County—Assisted Unit at least ten (10) months out of each calendar year. If a Tenant fails to remain certified as MHSA Eligible due to the vacation of the unit by the only MHSA Eligible household member (including by reason of the death of the only MHSA Eligible household member), the continuing or surviving members of such household shall be permitted continued occupancy for a reasonable period of up to one (1) year from the time of the.death or vacation and shall be provided with notice of their grace period and with assistance to obtain information about other available housing assistance programs. 5 863\72\=465516.1 ARTICLE -3) MHSA AND INCOME CERTIFICATION AND REPORTING 3.1 Income and MHSA Eligibility Certification. (a) Grantee 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. Grantee shall make a good faith effort to verify that the income provided by an applicant or occupying Tenant 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 County upon request. (b) Grantee will obtain, complete and maintain on file, immediately prior to initial occupancy certification from the Department of County Health Services or a County Designee as to whether or not the Tenant is MHSA Eligible. Annually thereafter, Grantee shall confirm and maintain on file a certification that each County-Assisted Unit is occupied by a Tenant Household with at least one member who is MHSA Eligible and that such member actually resides in such County-Assisted Unit in accordance with Section 2.4 of this Agreement. 3.2 Annual Report to County. Grantee shall submit to the County (a) not later than the forty-fifth (45t11) day after the close of each calendar year, or such other date as may be requested by the County, 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 County in order to comply with reporting requirements of DMH, the State of California, or the County. 3.3 Additional Information. Grantee shall provide any additional information reasonably requested by the County. The County shall have the right to examine and make copies of all books, records or other documents of Grantee which pertain to the Development. 3.4 Records. Grantee shall maintain complete., accurate and current records pertaining to the Development, and shall permit any duly authorized representative of the County to inspect records, including records pertaining to income of Tenants. All Tenant lists, applications and waiting lists relating to the Development shall at all times be kept separate and identifiable from 6 863\72\465516.1 any other business of Grantee and shall be maintained as required by the County, in a reasonable condition for proper audit and subject to examination during business hours by representatives of the County. Grantee.shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least five (5) years. 3.5 On-site Inspection. The County shall have the right to perform an on-site inspection of the Development at least one (1) time per year. Grantee agrees to cooperate in such inspection. ARTICLE 4 OPERATION OF THE DEVELOPMENT 4.1 Development Use. (a) The Development shall be operated only as permanent housing for MHSA Eligible Tenants. (b) In the event the ongoing operating and service support funds for MHSA Eligible Households identified in the Social Services Plan terminate due to no fault of Grantee, the County and Grantee may amend the Grant Documents to permit Very Low Income Tenants who are not MHSA Eligible to reside in one or more of the Units. 4.2 Compliance with Grant Agreement. Grantee shall comply with all the terms and provisions of the Grant Agreement. 4.3 Taxes and Assessments. Grantee 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 Grantee shall have the right to contest in good.faith, any such taxes, assessments, or charges. In the event Grantee exercises its right to contest any tax, assessment, or charge against it, Grantee, 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 Property 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(8) or Section 214(h), without the prior written consent of the County. 7 863\72\46516.1 ARTICLE 5 PROPERTY MANAGEMENT, MAINTENANCE, AND SOCIAL SERVICES 5.1 Management Responsibilities. The Grantee 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 County shall have no responsibility over management of the Development. The Grantee shall retain a professional property management company approved by the County in its reasonable discretion to perform its management duties hereunder, unless the County approves self management by the Grantee. 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 County, 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 Grantee shall submit for County's approval the identity of any proposed Management Agent (and County hereby pre-approves as the initial Management Agent). The Grantee shall also submit such additional information about the background, experience and financial condition of any proposed management agent as is reasonably necessary for County to determine whether the proposed management agent meets the standard for a qualified management agent set forth above. if the proposed management agent meets the standard for a qualified management agent set forth above, County shall approve the proposed management agent by notifying the Grantee in writing. Unless the proposed management agent is disapproved by County within thirty (30) days, which disapproval shall state with reasonable specificity the basis for disapproval, it shall be deemed approved. 5.3 Periodic Performance Review—Property Management. The County reserves the right to conduct an annual (or more frequently, if deemed necessary by the County) review of the management practices and financial status of the Development. The purpose of each periodic review will be to enable the County to determine if the Development is being operated and managed in accordance with the requirements and standards of this Agreement. The Grantee shall cooperate with the County in such reviews. 5.4 Replacement of Management Agent. If. as a result of a periodic review; the County determines in its reasonable judgement that the Development is not being operated and managed in accordance with any of the material requirements and standards of this Agreement, the County shall deliver notice to Grantee of its intention to cause replacement of the Management Agent, or if the Development is being self managed, to cause the Grantee to retain a Management Agent, including the reasons therefor. 8 863\72\465516.1 Within fifteen (15) days of receipt by Grantee of such written notice, County staff and the Grantee 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, County staff recommends in writing the replacement of the Management Agent, Grantee shall promptly dismiss the current Management Agent or cease self-management if the Development is self-managed, 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 County pursuant to Section 5.2 above. Any contract for the operation or management of the Development entered into by Grantee shall provide that the contract can be terminated as set forth above. Failure to remove the Management Agent or to appoint a Management Agent instead of self-managing, in accordance with the provisions of this Section shall constitute default under this Agreement, and the County may enforce this provision through legal proceedings as specified in Section 6.7, below. 5.5 Approval of Management Policies. The Grantee shall submit its written management policies with respect to the Development to the County for its review, and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this Agreement. 5.6 Property Maintenance. The Grantee agrees, for the entire Term 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. County places prime importance on quality maintenance to protect its investment and to ensure that all County-assisted affordable housing projects within the County are not allowed to deteriorate due to below-average maintenance. Normal wear and tear of the Development will be acceptable to the County assuming Grantee agrees to provide all necessary improvements to assure the Development is maintained in good condition. Grantee shall make all repairs and replacements necessary to keep the improvements in good condition and repair. In the event that Grantee breaches any of the covenants contained in this section and such default continues for a period of five (5) days after written notice from the County with respect to graffiti, debris, waste material, and general maintenance or thirty (30) days after written notice from the County with respect to landscaping and building improvements, then the County, 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 9 863\72\465516.1 the default. Pursuant to such right of entry, the County shall be permitted (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 County and/or costs of such cure, which amount shall be promptly paid by Grantee to the County upon demand. 5.7 Social Services. Throughout the Term, Grantee shall ensure that social services are provided pursuant to the Social Service Plan. ARTICLE 6 MISCELLANEOUS 6.1 Lease Provisions. In leasing the Units, Grantee shall use a form of Tenant lease approved by the County. The form of Tenant lease shall also comply with all requirements of this Agreement and the Grant Agreement, and shall, among other matters 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 Grantee to establish or recertify the Tenant's qualification, or the qualification of the Tenant for occupancy in the Development in accordance with the standards set forth in this Agreement, or(2) to qualify as a Very Low-Income Tenant, or (3) to qualify as a MHSA Eligible Tenant as a result of any material misrepresentation made by such Tenant with respect to the income computation or certification of MHSA Eligible status. 6.2 Nondiscrimination. All.of the Units shall be available for occupancy ona continuous basis to members of the general public who are MHSA Eligible and income eligible. The Grantee 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 income-eligible households and MHSA Eligible Tenants pursuant to this Agreement. 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 of income (e.g., SSI), ancestry, or disability, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any Unit nor shall Grantee or any person claiming under or through 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, sublessees, subtenants, or vendees of any Unit or in connection with the employment of persons for the construction, operation and management of any Unit. The Development shall be operated at all times in compliance with the provisions of: (i) the Unruh Act:. (ii) the California Fair Employment and Housing Act, (iv) the United States Fair Housing Act, as amended, and (v) any other applicable law or regulation (including the Americans With Disabilities Act. to the extent applicable to the Development). Grantee agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to County) 10 863\72\=1.65516.1 County, and its boardmembers, officers and employees, from all suits, actions, claims, causes of action, costs, demands,judgments and liens arising out of Grantee's failure to comply with applicable legal requirements related to housing for persons with disabilities. The provisions of this subsection shall survive expiration of the Term or other termination of this Agreement, and shall remain in full force and effect. 6.3 Term. The provisions of this Agreement shall apply to the Property for the entire Term even if the entire County Grant is paid in full prior to the end of the Term. This Agreement shall bind any successor, heir or assign of Grantee, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the County. The County makes the County Grant on the condition, and in consideration of, this provision, and would not do so otherwise. 6.4 Compliance with Grant Agreement and Program Requirements. (a) Grantee's actions with respect to the Property shall at all times be in full conformity with: (i) all requirements of the Grant Agreement; and (ii) all requirements imposed on projects under the Act and the DMH MHSA Regulations located at California Code of Regulations Title 9, Chapter 14. (b) In the event DMH publishes or causes to be published any regulation or requirement concerning the use of MHSA Funds which are applicable to the Project, and such regulation or requirement is inconsistent with the Grant Documents, upon request of the County, the parties shall amend the terms of the Grant Documents to comply with such regulations. 6.5 Notice of Expiration of Term. At least six (6) months prior to the expiration of the Term Grantee 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 increase in Rent upon the expiration of the Term, (c) a statement that a copy of such notice will be sent to the County, and (d) a statement that a public hearing may be held by the County on the issue and that the Tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. Grantee shall also file a copy of the above-described notice with the Deputy Director- Redevelopment of the County. 6.6 Covenants to Run With the Land. The County and Grantee 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 Term 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, 11 863\72\465516.1 deed or other instrument, unless the County expressly releases such conveyed portion of the Property from the requirements of this Agreement. 6.7 Enforcement by the County. If Grantee fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the County has notified Grantee 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 and complete such cure within ninety (90) days, the County shall have the right to enforce this Agreement by any or all of the following actions, or any other remedy provided by law: (a) Calling the County Grant. The County may declare a default under the Grant Agreement, accelerate the indebtedness evidenced by the Grant Agreement, and proceed with foreclosure under the County Deed of Trust. (b) Action to Compel Performance or for Damages. The County may bring an action at law or in equity to compel the Grantee's performance of its obligations under this Agreement, and/or for damages. (c) Remedies Provided Under Grant Agreement. The County may exercise any other remedy provided under the Grant Agreement. 6.8 Attornevs 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 with California Civil Code Section 1717 and judicial decisions interpreting that statute. 6.9 Recording and Filing. The County and the Grantee shall cause this Agreement, and all amendments and supplements to it, to be recorded in the Official Records of the County of Contra Costa. 6.10 Governing Law. This Agreement shall be governed by the laws of the State of California. 6.11 Waiver of Requirements. Any of the requirements of this Agreement may be expressly waived by the County in writing, but no waiver by the County of any requirement of this Agreement shall, or shall be deemed to, extend to or affect any other provision of this Agreement. 12 863\72\465516.1 6.12 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. 6.13 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 certified mail, postage prepaid, addressed to the appropriate party as follows: Grantee: Rubicon Programs, Inc. 2500 Bissell Avenue Richmond, CA 94804 Attn: Executive Director County: County of Contra Costa Community Development Department 2530 Arnold Drive, Suite 190 Martinez, CA 94553 Attention: Deputy Director- Redevelopment Such addresses may be changed by notice to the other party given in the same manner as provided above. 6.14 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. 6.15 Multiple Originals: Counterparts. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 13 863\72\=1.65516.1 WHEREAS, this Agreement has been entered into by the undersigned as of the date first written above. GRANTEE: RUBICON PROGRAMS, INC., a California nonprofit public benefit corporation By: Name: Its: COUNTY: COUNTY OF CONTRA COSTA, a political subdivision of the State of California By: James Kennedy Deputy Director—Redevelopment Form approved by Contra Costa County Counsel on , 2007. 14 863\72\465516.1 STATE OF CALIFORNIA ) ss. COUNTY OF CONTRA COSTA ) On , 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 , 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. 863\72\165516.1 EXHIBIT A LEGAL DESCRIPTION The land is situated in the State of California, County of Contra Costa, and is described as follows: A-1 863\72\465516.1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: County of Contra Costa Community Development Department 2530 Arnold Drive, Suite 19.0 Martinez, California 94553 Attention:.Deputy Director- Redevelopment No fee for recording pursuant to Government Code Section 1-7383 CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FIXTURE FILING (Virginia Street Apartments) THIS.CONSTRUCTION DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FIXTURE FILING ("Deed of Trust") is made as of this_ day of July . ?007, by and among the Rubicon Programs Inc., a California nonprofit public benefit corporation ("Trustor"), .[INSERT NAME OF TITLE COMPANY], a California corporation, ("Trustee"), and the County of Contra Costa, a political subdivision of the State of California("Beneficiary"). FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and 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; TOGETHER WITH all building materials and equipment now or hereafter delivered to said property and intended to be installed therein; 1 863\72\465506.1 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; 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, and TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment, work in process and other personal property to be incorporated into the Property; all goods, materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other personal property now or hereafter appropriated for use on the Property, whether stored on the Property or elsewhere, and used or to be used in 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 THE FOLLOWING OBLIGATIONS (the "Secured Obligations"): (a) Repayment of a revocable grant made to Trustor by Beneficiary as set forth in the Grant Agreement(defined in Section 1.1 below) until paid or cancelled and any other amounts 863\72\465506.1 owing under the Grant Documents (defined in Section 1.2 below). Said Grant Agreement and all its terms are incorporated herein by reference, and this conveyance shall secure any and all extensions thereof, however evidenced, (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, (c) Performance of every obligation, covenant or agreement of Trustor contained herein and in the Grant Documents: and (d) All modifications, extensions and renewals of any of the Secured Obligations AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: ARTICLE 1: 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 "Grant Agreement" means that certain MHSA Revocable Grant Agreement between Trustor and Beneficiary, of even date herewith, providing for the Beneficiary to grant to the Trustor Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,33.2) for the rehabilitation of six (6) apartment units and appurtenant improvements. Section 1.2 The term "Grant Documents" means this Deed of Trust, the Grant Agreement, the Regulatory Agreement, and any other debt, loan or security instruments between Trustor and the Beneficiary relating to the Property. Section L3 The term "Principal" means the aggregate of the amounts required to be paid under the Grant Agreement. Section 1.4 The term "Regulatory Agreement" means that certain regulatory agreement of even date herewith by and between the Beneficiary and the Trustor. 3 863\72\465506.1 ARTICLE 2: MAINTENANCE AND MODIFICATION OF THE PROPERTY AND SECURITY Section 2.1 Maintenance and Modification of the Property by Trustor. The Trustor agrees that at all times prior to full payment and performance of the Secured Obligations, 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 Grant 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 Grant Agreement, Trustor hereby absolutely and unconditionally assigns and transfers to Beneficiary all the rents 4 863\72\465506.1 and revenues of the Property including those now due, past due, or to become due by virtue of any lease or other agreement for the occupancy or use of all or any part of the Property, regardless of to whom the rents and revenues of the Property are payable. Trustor hereby authorizes Beneficiary or Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of the Property to pay such rents to Beneficiary or Beneficiary's agents, provided, however, that prior to written noticegiven by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Grant Documents, Trustor shall collect and receive all rents and revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the rents and revenues so collected to the Secured Obligations 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 Grant 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 rents 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 Beneficiary's agents on Beneficiary's written demand to each tenant therefor, delivered to each tenant personally, by mail or by delivering such demand to each rental unit, without any 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 Grant 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 any covenant or agreement of Trustor in this Deed of Trust, Trustor hereby expressly consents to 863\72\465506.1 5 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 Trustor in the Grant 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 Trustor, anyone claiming under or through Trustor or anyone having an interest in the Property by reason of anything done or left undone by Beneficiary under this 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 part of the Secured Obligations pursuant to Section 3.3 hereof. Unless Beneficiary and Trustor agree in writing to other terms of payment, such amounts 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 the Secured Obligations. ARTICLE 3: TAXES AND INSURANCE; ADVANCES Section 3.1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, prior to the date of delinquency, all taxes, assessments, charges and levies imposed by any public authority or 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 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 6 863\72\465506.I 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 advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted by law, shall become part of the Secured Obligations 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 Grant 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 Secured 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 Trustor's satisfaction of the Secured Obligations. 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 Grant Documents, the Beneficiary, after at least seven (7) days prior notice to Trustor, 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 part of the Secured Obligations (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 ten percent (10%) per annum or the maximum rate permitted by law. ARTICLE 4: DAMAGE, DESTRUCTION OR CONDEMNATION Section 4.1 Awards and Damages. All judgments, awards of damages, settlements and 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 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 7 863\72\465506.1 Property (collectively,.the "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. The Beneficiary shall release the Funds to Trustor to be used to reconstruct the improvements on the Property provided that Beneficiary reasonably determines that Trustor (taking into account the Funds)has sufficient funds to rebuild the improvements in substantially the form they existing prior to the casualty or condemnation. 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 Grant 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 in Section 7.1) 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 (including, but not limited to, other professional service fees and costs); and any such amounts paid by the Beneficiary shall be added to the Secured Obligations, 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 Pavment of the Principal. The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth in the Grant Agreement in the amounts and by the times set out therein. 8 863\72\465506.1 Section 5.4 Personal Property. 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 security agreement under the California Commercial Code. The Trustor hereby grants the Beneficiary a security interest in such items. Section 5.5 Financing Statement. The Trustor shall execute and deliver to the Beneficiary such financing statements pursuant to the appropriate statutes, and any other documents or instruments as are required to convey to the Beneficiary a valid perfected security interest in the Security. The Trustor 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 grant in accordance with its terms in the Grant Documents. 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. Trustor shall pay all costs of filing such financing statements and any extensions, renewals, amendments, and releases thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements, and releases thereof, as the Beneficiary may reasonably require. Without the prior written consent of the Beneficiary, Trustor shall not create or suffer to be created pursuant to the California Commercial Code any other security interest in the Security, including replacements and additions thereto. 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 Grant 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, color, creed, religion, age, sex, sexual orientation, marital status, national origin or ancestry in the sale; lease, sublease, transfer, use. occupancy, tenure or enjoyment of the Security, nor 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 9 863\72\465506. 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 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 used in construction or operation of a multifamily residential development. Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of(i) any and all enforcement, cleanup, removal or other governmental or regulatory actions 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 are 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" (as defined in California Health and Safety Code Section 25117.4) 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 and consultant's fees. This indemnificatioii.applies whether or not any government agency has issued a cleanup order. 10 863\72\465506. Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property; (2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the marketing of any rental space on the Property; and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties). 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. Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if(i) a particular remedial action is ordered by a court of competent 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 Trustor 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 Grant 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 any way affecting the Beneficiary's or the Trustee's rights and remedies under this Deed of Trust,the Beneficiary may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and remedies 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 11 863\72\465506.1 California Code of Civil Procedure Section 726.5(d)(1), 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 default rate specified in the Grant Agreement, 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. The Trustor is aware that California Civil Code Section 2955.5(a)provides as follows: "No lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real property, to provide hazard insurance coverage against risks to the improvements on that real property in an amount exceeding the replacement value of the improvements on the property." ARTICLE 7: EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default. The following shall constitute events of default ("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 Grant Documents; (2) failure to observe or perform any of Trustor's other covenants. agreements or obligations under the Grant Documents, including, without limitation, the provisions concerning discrimination; or(3) failure to make any payment or observe or perform any of Trustor's other covenants, agreements, or obligations under any Secured Obligations, 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 all unpaid Secured Obligations shall immediately become due and payable, upon written notice by the Beneficiary to the Trustor(or automatically where so specified in the Grant 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: 12 863\72\465506.1 (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 in Section 7.4) hereunder or invalidate any act done in response to such Event of 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 the Secured Obligations. Section 7.4 Foreclosure By Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall 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 Secured Obligations are 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 given as required by law, sell the Security, at the time and place of sale fixed by it in the 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 thehighest 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 13 863\72\165506.1 truthfulness thereof. Any person, including, without limitation, Trustor. Trustee or Beneficiary, may purchase at such sale. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the unpaid Principal amount; (ii) all other Secured Obligations owed to Beneficiary under the Grant 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. 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 express or implied consent to breach, or waiver of, any obligation of the 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 to 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. 14 863\72\=165506.1 (b) If the Beneficiary (i) grants.forbearance or an extension of time for the payment or performance of any Secured Obligations, (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 Grant 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 Grant 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 omissionpreclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary 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 suits 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 Mav 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 Trustee and/or 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 Secured Obligations or in proceedings against the Security, in connection with the delivery, acceptance, performance, default, endorsement or guaranty of this Deed of Trust. 15 863\72\465506.1 ARTICLE 8: MISCELLANEOUS Section 8.1 Amendments. This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor. Section 8.2 Reconveyance by Trustee. Upon written request of Beneficiary stating that all Secured Obligations 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. 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, by reputable overnight delivery service (which provides a delivery receipt) 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 Community Development Department 2530 Arnold Drive, Suite 190 Martinez, CA 94553 Attn: Deputy Director-Redevelopment and (2) if intended for Trustor shall be addressed to: Rubicon Programs, Inc. 2500 Bissell Avenue Richmond, CA 94804 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. 16 863\72\=65506.1 Section 8.4 Successors and Joint Trustors. Where an obligation created herein is 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 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, Mortgague. Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and any reference to a deed 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. 17 863\72\465506.1 1 Section 8.l 1 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 Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the Property is situated, 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. 18 863`•.72\46506.1 IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. TRUSTOR: RUBICON PROGRAMS, INC., a California nonprofit benefit corporation By: Name: Its: Form Approved by Contra Costa County Counsel on , 2007 19 863\72\465506.1 STATE OF CALIFORNIA ) ss. COUNTY OF CONTRA COSTA ) On 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. 863\72\465506.1 EXHIBIT A LEGAL DESCRIPTION The land is situated in the State of California, City of Richmond, County of Contra Costa, and is described as follows: A-1 863\72\46 -506.1 MHSA REVOCABLE GRANT AGREEMENT Between County of Contra Costa and Rubicon Programs, Inc. VIRGINIA STREET APARTMENTS 863\72\465300.1 TABLE OF CONTENTS Page ARTICLE 1 DEFINITIONS AND EXHIBITS...........................................................................2 Section1.1 Definitions...................................................................................................2 Section1.2 Exhibits. ......................................................................................................4 ARTICLE 2 GRANT PROVISIONS ..........................................................................................4 Section2.1 Grant................................................................:...........................................4 Section2.2 Interest.........................................................................................................4 Section 2.3 Use of Grant Funds. ....................................................................................4 Section2.4 Security. ......................................................................................................4 Section 2.5 Conditions Precedent to Disbursement of Grant Funds..............................4 Section 2.6 Conditions Precedent to Disbursement of Retention. .................................6 Section 2.7 Repayment Schedule...................................................................................6 Section 2.8 Non-Recourse..............................................................................................7 ARTICLE 3 REHABILITATION OF THE DEVELOPMENT.................................................. 7 Section 3.1 Permits and Approvals. ...................................................:...........................7 Section3.2 Bid Package.................................................................................................7 Section 3.3 Construction Contract. ................................................................................8 Section3.4 Bonds...........................................................................................................9 Section 3.5 Commencement of Rehabilitation...............................................................9 Section 3.6 Completion of Rehabilitation......................................................................9 Section 3.7 Rehabilitation Pursuant to Plans and Laws; Prevailing Wages; Accessibility.....................................................................:.............9 Section 3.8 Marketing Plan and Services Plan.........................................:................... 10 Section 3.9 Equal Opportunity..................................................................................... I 1 Section 3.10 Minority and Women-Owned Contractors................................................ l l Section 3.11 Progress Reports.....................................................:.................................. 11 Section 3.12 Rehabilitation Responsibilities...........:...................................................... 11 Section 3.13 Mechanics Liens, Stop Notices, and Notices of Completion.................... 12 Section 3.14 Inspections................................................................................................. 12 Section 3.15 Approved Development Budget; Revisions to Budget. ............................ 12 Section 3.16 Relocation. ................................................................................................ 13 ARTICLE 4 GRANT REQUIREMENTS................................................................................. 13 Section 4.1 Financial Accountings and Post-Completion Audits. ............................... 13 Section 4.2 Annual Operating Budget. ........................................................................ 13 Section 4.3 Information................................................................................................ 14 Section4.4 Records............................:......................................................................... 14 Section4.5 Audits...............:........................................................................................ 15 Section 4.6 Hazardous Materials.................................................................................. 15 Section 4:7 Maintenance and Damage....................:.................................................... 17 Section 4.8 Fees and Taxes........................................................................................... 17 Section 4.9 Notice of Litigation..............................................................:.................... 1.8 Section 4.10 Operation of Development as.MHSA Eligible Housing:.......................... 18 i ' 863\72\465300.1 r , TABLE OF CONTENTS (continued) Page Section 4.11 Nondiscrimination..................................................................................... 18 Section4.12 Transfer. .................................................................................................... 19 Section 4.13 Insurance Requirements............................................. ............................. 19 ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF GRANTEE...........................20 Section 5.1 Representations and Warranties................................................................20 ARTICLE 6 DEFAULT AND REMEDIES..............................................................................22 Section 6.1 Events of Default.......................................................................................22 Section 6.2 Remedies.................................. Section 6.3 Right of Contest. .......................................................................................24 Section 6.4 Remedies Cumulative. ..............................................................................25 ARTICLE 7 GENERAL PROVISIONS.................................................... ...............................25 Section 7.1 Relationship of Parties. .............................................................................25 Section7.2 No Claims..................................................................................................25 Section7.3 Amendments. ............................................................................................25 Section 7.4 Indemnification. ........................................................................................26 Section 7.5 Non-Liability of County Officials, Employees and Agents......................26 Section 7.6 No Third Party Beneficiaries. ...................................................................26 Section 7.7 Discretion Retained By County. ...............................................................26 Section 7.8 Conflict of Interest. ..................................................:................................26 Section 7.9 Notices, Demands and Communications. .................................................27 Section 7.10 Applicable Law. ........................................................................................27 Section 7.11 Parties Bound. ............................................................................................27 Section 7.12 Attorneys' Fees...........................................................................................28 Section 7.13 Severability. ..............................................................................................28 Section 7.14 Force Majeure. ..........................................................................................28 Section 7.15 County Approval.......................................................................................28 Section7.16 Waivers. ................................................................................:...................28 Section 7.17 Title of Parts and Sections.........................................................................29 Section 7.18 Entire Understanding of the Parties. ........:................................................29 Section 7.19 Multiple Originals; Counterpart................................................................29 EXHIBIT A: Legal Description of the Property EXHIBIT B: Approved Development Budget EXHIBIT C: Scope of Work ii 863\72\465300.1 MHSA REVOCABLE GRANT AGREEMENT Virginia Street Apartments This MHSA Revocable Grant Agreement (the "Agreement") is entered into as of 2007, by and between the County of Contra Costa, a political subdivision of the State of California(the "County"), and Rubicon Programs, Inc., a California nonprofit public benefit corporation ("Grantee"), with reference to the following facts: A. The County has received "one-time funds" funds from the California Department of Mental Health, ("DMH") pursuant to Proposition 63, the Mental Health Services Act("MHSA Funds"). Proposition 63 (the "Act" or "MHSA") was enacted by the voters of the State of California in November of 2004. The MHSA Funds must be used by the County in accordance with Proposition 63 and California Code of Regulations Title 9, Chapter 14. B. Grantee owns certain real property located at 900-919 Virginia Street in the City of Richmond, County of Contra Costa, State of California, as more.particularly described in Exhibit A (the "Property"). Grantee intends to rehabilitate the six (6) residential unit building and related improvements currently located on the Property (the "Development"). The Development is currently operated as affordable housing for persons with mental health disabilities. C. Grantee wishes to accept from the County and the County wishes to extend to Grantee a grant of Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,332) to assist in the rehabilitation of the Development (the "Grant"). The Grant consists of MHSA Funds. The Grant will be evidenced by this Agreement and secured by a deed of trust. F. The Grant is being made to finance rehabilitation costs associated with the Development in order to help achieve financial feasibility for the Development and to increase the supply of affordable rental housing for persons with mental health disabilities in Contra Costa County. Due to the assistance provided Grantee pursuant to this Agreement, the County has classified all six (6) units in the Development as MHSA-Assisted Units. G. The California Environmental Quality Act (Public Resources Code Sections 21000 et sed.) ("CEQA") imposes no conditions on the County's consideration and approval of this Agreement, because the project undertaken pursuant to this Agreement is the rehabilitation of existing improvements, and such projects are exempt from CEQA requirements under class 1, 2 and 32 categorical exemptions. H. The use of MHSA Funds in accordance with this Agreement is consistent with the non-supplant requirements of the Act in that the funds will expand mental health services and/or program capacity for persons with severe mental illness who are unserved or underserved: Additionally, no other County mental health dollars are available to ensure that the Development remains as decent, safe and sanitary housing for persons with severe mental illness who are unserved or underserved. The use of MHSA Funds in accordance with this Agreement is also consistent with the County's "Community Planning Process" and the "Three-Year Program and 1 863\72\365300.1 Expenditure Plan" submitted by the County to DMH, both of which are required by California Code of Regulations Title 9, Chapter 14. NOW, THEREFORE, the Parties agree as follows: ARTICLE 1 DEFINITIONS AND EXHIBITS Section 1.1 Definitions. The following capitalized terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided: (a) "Agreement" shall mean this MHSA Revocable Grant Agreement. (b) "Approved Development Budget" shall mean the proforma development budget, including sources and uses of funds, as approved by the County, and attached hereto and .incorporated herein as Exhibit B. (c) "Bid Package" shall mean the Grantee's proposed bid package to be made available to potential bidders. The contents of the Bid Package are more particularly described in Section 3.2. (d) "County" has the meaning set forth in the first paragraph of this Agreement. (e) "Deed of Trust" shall mean the deed of trust dated , 2007 among Grantee, as trustor, Title Company, as trustee, and the County, as beneficiary, that will encumber the Development to secure performance of the Grant requirements. The form of the Deed of Trust shall be provided by the County. (f) "Default" shall have the meaning set forth in Section 6.1 below. (g) "Default Rate" shall have the meaning set forth in Section 6.2(c). (h) "Development" shall mean the Property and the six (6) residential units building and related improvements located thereon. (i) "DMH" shall mean the California Department of Mental Health. (j) ."Grant" shall mean the County grant to Grantee in the principal amount of Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,332), consisting of the MHSA Funds. (k) "Grant Documents" shall mean this Agreement, the Regulatory Agreement, and the Deed of Trust. (1) "Grantee" has the meaning set forth in the first paragraph of this Agreement. 863\72\465300.1 5 (m) "Hazardous Materials" shall have the meaning set forth in Section 4.6 below. (n) "Hazardous Materials Claim" shall have the meaning set forth in Section 4.6 below. (o) "Hazardous Materials Law" shall have the meaning set forth in Section 4.6 below. (p) "HCD Loan" shall mean the Special User Housing Rehabilitation Program loan from the California Department of Housing and Community Development in the approximate amount of One Hundred Eighty Seven Thousand Five Hundred Dollars ($187,500) which is secured by a deed of trust recorded against the Property in the Official Records of Contra Costa County as Instrument Number 81-130096. (q) "MHSA" or the "Act" shall mean the Mental Health Services Act adopted by the voters of the State of California in November 2004 as Proposition 63. (r) "MHSA Eligible" shall have the meaning set forth in the Regulatory Agreement. (s) "MHSA Funds" shall mean the Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,332) of"one-time" MHSA funds obtained by the County from DMH that are utilized to fund the Grant. (t) "Parties" shall mean the County and Grantee. (u) "Property" has the meaning set forth in paragraph B of the Recitals. (v) "Regulatory Agreement" shall mean the Regulatory Agreement and Declaration of Restrictive Covenants between the County and Grantee associated with the Grant to be recorded against the Property. (w) "Retention Amount" shall mean the Ten Thousand Dollars ($10,000) of MHSA Funds set forth in Section 2.6 below. (x) "Scope of Work" shall mean the scope of work for the rehabilitation of the Development more particularly set forth as Exhibit C. (y) "Tenant" shall mean the tenant household occupying a Unit. (z) "Term" shall have the meaning set forth in Section 2.7(a) below. (aa) "Transfer" shall have.the meaning set forth in Section 4.12 below. (bb) "Unit" shall mean one (1) of the Units in theDevelopment that shall be .occupied by or available to MHSA Eligible Tenants. 963\72\465300.1 Section 1.2 Exhibits. The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference: Exhibit A: Legal Description of the Property Exhibit B: Approved Development Budget Exhibit C: Scope of Work ARTICLE 2 GRANT PROVISIONS Section 2.1 Grant. The County shall grant to the Grantee the Grant in the principal amount of Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,332) consisting of MHSA Funds for the purposes set forth in Section 2.3 of this Agreement. Section 2.2 Interest. (a) Default Interest. In the event of a Default, interest on the Grant shall begin to accrue, as of the date of Default and continuing until such time as the Grant is repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, and the highest rate permitted by law. Section 2.3 Use of Grant Funds. (a) The Grantee shall use the Grant to fund the rehabilitation of the Development consistent with the Approved Development Budget, and the Scope of Work. (b) The Grantee shall not use the Grant funds for any other purposes without the prior written consent of the County. Section 2.4 Securitv. Grantee shall secure its obligation to repay the Grant in the event of Default by executing the Deed of Trust, and recording it as a lien against the Property,junior in lien priority to the deed(s) of trust securing the HCD Loan Section 2.5 Conditions Precedent to Disbursement of Grant Funds. The maximum amount of funds to be disbursed pursuant to this Section 2.5 shall not exceed the amount of the Grant less the Retention Amount. The County shall not be obligated to make any disbursements of Grant proceeds, or take any other action under the Grant Documents unless the following conditions precedent are satisfied prior to each such disbursement of Grant funds: (a) There exists no Default nor any act, failure, omission or condition that would constitute an event of Default under this Agreement, or the Grant Documents. 4 863\72\46300.1 (b) Grantee has executed and delivered the Grant Documents to the County and any other instruments and policies required under the Grant Documents. (c) Grantee has delivered to the County a copy of a corporate authorizing resolution authorizing Grantee's execution of the Grant Documents. (d) A title insurer reasonably acceptable to the County is unconditionally and irrevocably committed to issuing an LP-10 ALTA Lender's Policy of title insurance insuring the priority of the Deed of Trust in the amount of the Grant, subject only to such exceptions and exclusions as may be reasonably acceptable to the County, and containing such endorsements as the County may reasonably require. The Grantee shall provide whatever documentation (including an indemnification agreement), deposits or surety is reasonably required by the title company in order for the County's Deed of Trust to be senior in lien priority to any mechanics liens in connection with any early start of rehabilitation. (e) The Deed of Trust and the Regulatory Agreement have been recorded against the Property in the Office of the Recorder of the County of Contra Costa. (f) Grantee has furnished the County with evidence of the insurance coverage meeting the requirements of Section 4.13 below. (g) The County has determined the undisbursed proceeds of the Grant, together with other funds or firm commitments for funds that the Grantee has obtained in connection with the Development, are not less than the amount that the County determines is necessary to pay for rehabilitation of the Development and to satisfy all of the covenants contained in this Agreement and the Regulatory Agreement. (h) The County has received and approved the final plans and specifications for the rehabilitation of the Development. as required pursuant to Section -3.2 below. (i) The County has received and approved the general contractor's construction contract that the Grantee has entered or proposed to enter for rehabilitation of the Development as required pursuant to Section 3.3 below. (j) The County has received copies of labor and material (payment) bonds and performance bonds as required pursuant to Section 3.4 below. (k) The County has received a written draw request from the Grantee, including certification that the condition set forth in Section 2.5(a) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Approved Development Budget, the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with improvements on the Property, the written request must be accompanied by (i) certification by the Grantee's architect reasonably acceptable to the County that the work for which disbursement is requested has been completed (although the County reserves the right to inspect the Property and make an independent evaluation), and (ii)'lien releases and/or' mechanics lien title insurance endorsements reasonably acceptable to the County. 5 863\72\465300.1 (1) The County has approved the Relocation Plan required pursuant to Section 3.16. Section 2.6 Conditions Precedent to Disbursement of Retention. The County shall not be obligated to disburse the Retention Amount unless the following conditions precedent are satisfied: (a) The County has received a completion report from the Grantee certifying that each Tenant is MHSA Eligible, setting forth the income, household size, and ethnicity of tenants of the Development and the unit size, rent amount and utility allowance for all units in the Development. (b) The County has received a cost certification for the Development from the Grantee showing all uses and sources. (c) The County has received from the Grantee copies of the final certificate of occupancy for the Development, or other equivalent document evidencing completion of the .rehabilitation. (d) The County has received for the Grantee current evidence of the insurance coverage meeting the requirements of Section 4.13 below. (e) The County has received from Grantee a form of lease, Marketing Plan and Social Service Plan for the Development. (f) The County has received from Grantee evidence of marketing for any vacant units in the Development such as copies of flyers, list of media ads, list of agencies and organizations receiving information on availability of units, as applicable. (g) The County has received from Grantee all relevant contract activity information. (h) The County has received from Grantee contact information for the property manager of the Development and the name and phone number of the on-site property manager. (i) The County has received a written draw request from the Grantee, including certification that the condition set forth in Section 2.5(a) continues to be satisfied, and setting forth the proposed uses of funds consistent with the Approved Development Budget, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. Grantee shall apply the disbursement for the purpose(s) requested. Section 2.7 Repayment Schedule. No repayment of the Grant shall be required if Grantee complies with the requirements of the Grant Documents for a term commencing on the date of this Agreement and continuing for 6 863\72\465300.1 forty (40) years thereafter(the "Term"). The Regulatory Agreement shall remain in effect for the entire Terni, regardless of any repayment of the Grant. Section 2.8 Non-Recourse. Except as provided below, the Grantee shall not have any direct or indirect personal liability for payment of the principal of and interest on, the Grant or the performance of the covenants of the Grantee under the Deed of Trust. Following recordation of the Deed of Trust, the sole recourse of the County with respect to the amount of, or interest on, the Grant and defaults by the Grantee in the performance of its covenants under the Deed of Trust shall be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability shall (a) limit or impair the enforcement against all such security for the Grant Agreement of all the rights and remedies of the County thereunder, or(b) be deemed in any way to impair the right of the County to assert the unpaid principal amount of the Grant as demand for-money within the meaning and intendment of Section 431.70 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 Grant; and payment of interest on the Grant and the performance of the Grantee's obligations under the Deed of Trust,.except as hereafter set forth; nothing contained herein is intended to relieve the Grantee of its obligation to indemnify the County under Sections 3.7, 3.16. 4.6 and 7.4 of this Agreement, or liability for(i) fraud or willful misrepresentation; (ii) the failure to pay taxes, assessments or other charges which may create liens.on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by Grantee other than in accordance with the Deed of Trust; and (iv) 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. ARTICLE 3 REHABILITATION OF THE DEVELOPMENT Section 3.1 Permits and Approvals. All permits and approvals necessary for the rehabilitation of the Development on the Property must be received no later than , 2007, or such later date that the County may approve, or the County, at its option, and with thirty (30) days written notice and opportunity to cure, may declare Grantee in default hereunder. Section '.2 Bid Packasze. (a) No later than fifteen(15) days prior to the date the proposed Bid Package is submitted for publication, the Grantee shall submit to the County Community Development Department- Housing Division a copy of the Grantee's proposed Bid Package the Grantee shall utilize to select the general contractor and, as applicable, subcontractors for the Development. Such Bid Package shall include. but shall not be limited to,(i) a copy of the proposed construction contract, (ii) a copy of the proposed invitation to bid, (iii) other procurement 7 863\72\465300.1 documentation reasonably requested by the County, and (iv) all Rehabilitation Plans for the Development. As used in this Agreement, "Rehabilitation Plans" shall mean all documentation upon which Grantee and Grantee's contractor, if any, shall rely in rehabilitating all the improvements on the Property (including the Units, 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"). (b) The County Community Development Department shall, if the Bid Package submitted conforms to the provisions of this Agreement, approve in writing such Bid Package. Unless rejected by the County Community Development Department for its failure to comply with the foregoing requirements within fifteen (15) days after submission by Grantee, said Bid Package shall be deemed accepted. (c) If rejected by the County Community Development Department in whole or in part, Grantee shall submit a new or a corrected Bid Package within fifteen (15) days after notification of the County's rejection and the reasons therefor. The County shall then have fifteen (15) days to review and approve Grantee's new or corrected Bid Package. The provisions of this Section relating to time periods for approval, rejection, or resubmission of a new or. corrected Bid Package shall continue to apply until the Bid Package has been approved by the County Community Development Department. Section 3.3 Construction Contract. (a) Not later than thirty Q days prior to the proposed commencement of rehabilitation of the Development, the Grantee shall submit to the County for its approval the proposed construction contract for the Development. All rehabilitation work and professional services shall be performed by persons or entities licensed or otherwise authorized to perform the applicable rehabilitation work or service in the State of California. Each contract that the Grantee enters for rehabilitation of the Development shall provide that at least ten percent (10%) of the costs incurred shall be payable only upon completion of rehabilitation, subject to early release of retention for specified subcontractors upon approval by the County. The County's approval of the construction contract shall in no way be deemed to constitute approval of or concurrence with any term or condition of the construction contract except as such term or condition may be required by this Agreement. (b) Upon receipt by the County of the proposed construction contract, the County shall promptly review same and approve or disapprove it within ten (10) working days. If the construction contract is not approved by the County, the County shall set forth in writing and notify the Grantee of the County's reasons for withholding such approval. The Grantee shall thereafter submit a revised construction contract for County approval, which approval shall be granted or denied in ten (10) working days in accordance with the procedures set forth above. Any construction contract executed by the Grantee for the Development shall be in the form approved by the County. 8 863\72\465300.1 Section 3.4 Bonds. Prior to commencement of rehabilitation of the Development, the Grantee shall deliver to the County copies of labor and material bonds and performance bonds for the rehabilitation of the Development in an amount equal to one hundred percent (100%) of the scheduled cost of the Development. Such bonds shall name the County as a co-obligee. Section 3.5 Commencement of Rehabilitation. Grantee shall cause the commencement of rehabilitation of the Development no later than 2007, or such later date that the County may approve. Section 3.6 Completion of Rehabilitation. Grantee shall diligently prosecute rehabilitation of the Development to completion, and shall cause the completion of the rehabilitation of the Development no later than , 200--, or such later date that the County may approve. Section 3.7 Rehabilitation Pursuant to Plans and Laws: Prevailing Wages: Accessibilitv. (a) Grantee shall rehabilitate the Development in conformance with the Scope of Work and the plans and specifications approved by the City of Richmond Building Inspection Department. Grantee shall notify the County 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 County. A written change order authorized by the County must be obtained before any of the following changes, additions, or deletions in work for the Development may be performed: (1) any change in the work the cost of which exceeds Fifteen Thousand Dollars ($15,000); or (2) any set of changes in the work the cost of which cumulatively exceeds Fifty Thousand Dollars ($50,000) or ten percent (10%) of the Grant amount, whichever is less; or(3) any material change in building materials or equipment, specifications, or the structural or architectural design or appearance of the Development as provided for in the plans and specifications approved by the City of Richmond. Consent to any additions, changes, or deletions to the work shall not relieve or release Grantee from any other obligations under this Agreement, or relieve or release Grantee or its surety from any surety bond. (b) Grantee shall cause all work performed in connection with the Development to be performed in compliance with 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 to the extent applicable, 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. The work shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and Grantee shall be responsible to the County for the procurement and maintenance thereof,, as may be required of Grantee and all entities engaged in work on the Development. 9 863\72\465300.1 6 (c) Grantee shall pay and shall cause the contractor and subcontractors to pay prevailing wages in the rehabilitation of the Development as those wages are determined pursuant to Labor Code Sections 1720 et seg., to employ apprentices as required by Labor Code Sections 1777.5 et seq., and the implementing regulations of the Department of Industrial Relations (the "DIR"). The Grantee shall and shall cause the contractor and subcontractors to comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1777.5 et seg., and implementing regulations of the DIR. The Grantee shall and shall cause the contractor and subcontractors to keep and retain such records as are necessary to determine if such prevailing wages have been paid as required pursuant to Labor Code Sections 1720 et seq., and apprentices have been employed are required by Labor Code.Sections 1777.5 etsec. Copies of the currently applicable current per diem prevailing wages are available from DIR. During the rehabilitation of the Development, Grantee shall or shall cause the contractor to post at the Property the applicable prevailing rates of per diem wages. The Grantee shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the County)the County 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 Grantee, its contractor and subcontractors) to pay prevailing wages as determined pursuant to Labor Code Sections 1720 et seg., to employ apprentices pursuant to Labor Code Sections 1777.5 et seg., and implementing regulations of the DIR or to comply with the other applicable provisions of Labor Code Sections 1720 et SeMc., 1777.5 et seg., and the implementing regulations of the DIR in connection with the rehabilitation of the Project or any other work undertaken or in connection with the Property. The requirements in this Subsection shall survive the repayment of the Grant, and the reconveyance of the Deed of Trust. Section 3.8 Marketing Plan and Services Plan. (a) If requested by the County, within ninety (90) days following the County's request, Grantee shall submit to the County for approval its plan for marketing the Development to eligible households as required pursuant to the Regulatory Agreement including information on tenant selection, affirmative marketing efforts and compliance with fair housing laws (the "Marketing Plan"). Upon receipt of the Marketing Plan,the County shall promptly review the Marketing Plan and shall approve or disapprove it within fifteen (15) days after submission. If the Marketing Plan is not approved, Grantee shall submit a revised Marketing Plan within fifteen (15) days. If the County does not approve the revised Marketing Plan, Grantee shall be in default hereunder. (b) No later than two (2) months prior to the projected.date of completion of the rehabilitation of the Development. Grantee shall submit to the County for approval its social service plan for the Development (the "Social Service Plan"). The Social Service Plan shall provide a clearly articulated service delivery program. The services to be provided pursuant to the Social Service Plan must be appropriate for MHSA Eligible Tenants, and the Grantee must have a commitment for ongoing funding and a budget for such services. The Social Service Plan must identify a qualified service provider who will provide supportive services to the Tenants. In the event that there is not a single service provider, the Social Service Plan must identify a lead service provider for the Development.The Social Service Plan must also detail how the services will promote wellness, recovery, resiliency and self sufficiency, assist Tenants in obtaining or maintaining benefits to which Tenants may be entitled, such as cash assistance or medical 10 863\72\465300.1 1 benefits, assess the needs of Tenants.and assess the success of the social services and housing services. The Social Service Plan shall also include provisions setting forth the manner in which the social service provider(s) shall: (1) provide quarterly progress reports detailing the number of persons served by the social service provider(s) at the Development or from the Development and the names of such persons and (2) provide yearly information regarding the race, ethnicity, gender, cultural and linguistic characteristics of such persons. Upon receipt of the Social Services Plan, the County shall promptly review the Social Services Plan and shall approve or disapprove it within fifteen (15) days after submission. If the Social Services Plan is not approved, Grantee shall submit a revised Social Services Plan within fifteen (15) days. If the County does not approve the revised Social Services Plan, Grantee shall be in default hereunder. The County may require that the Social Service Plan be updated by Grantee and/or the social service providers throughout the Term in order to comply with applicable DMH requirements. In the event the County requires an update of the Social Service Plan, the County shall notify Grantee in writing and Grantee shall have thirty (30) days from the date of such written notice to provide the County with an updated Social Service Plan. The time periods for review and approval of the updated Social Service Plan shall be the same as the time periods set forth above for Grantee's initial submission of the Social Service Plan. Section 3.9 Equal Opportunity. During the rehabilitation of the Development there shall be no discrimination on the basis of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry, or disability in the hiring, firing, promoting, or demoting of any person engaged in the rehabilitation work. Section 3.10 Minority and Women-Owned Contractors. Grantee will use its best efforts to afford minority-owned and women-owned business enterprises the maximum practicable opportunity to participate in the rehabilitation of the Development. Grantee shall, at a minimum, notify applicable minority-owned and women- owned business firms located in Contra Costa County of bid opportunities for the rehabilitation of the Development. Documentation of such notifications shall be maintained by Grantee and available to the County as requested. Section 3.11 Progress Reports. Until such time as Grantee has received a certificate of occupancy from the County for the Development, Grantee shall provide the County with quarterly progress reports regarding the status of the rehabilitation of the Development, including a certification that the actual rehabilitation costs to date conform to the Approved Development Budget, as it may be amended from time to time pursuant to Section 3.15 below. Section 3.12 Rehabilitation Responsibilities. (a) It shall be the responsibility of Grantee to coordinate and schedule the work to be performed so that commencement and completion of the rehabilitation will take place in accordance with this Agreement. 11 863\72\465300.1 (b) Grantee shall be solely responsible for all aspects of Grantee's conduct in connection with the Development, including (but not limited to) the quality and suitability of the plans and specifications, the supervision of rehabilitation work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the County with reference to the Development is solely for the purpose of determining whether Grantee is properly discharging its obligations to the County, and should not be relied upon by Grantee or by any third parties as a warranty or representation by the County as to the quality of the design or rehabilitation of the Development. Section 3.13 Mechanics Liens. Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Property or a stop notice affecting the Grant is served on the County or any lender or other third party in connection with the Development, then Grantee shall, within twenty (20) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the County a surety bond in sufficient form and amount, or provide the County with other assurance satisfactory to the County that the claim of lien or stop notice will be paid or discharged. (b) If Grantee fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section, then in addition to any other right or remedy, the County may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at Grantee's expense. Alternately, the County may require Grantee to immediately deposit with the County the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The County may use such deposit to satisfy any claim or lien that is adversely determined against Grantee. (c) Grantee shall file a valid notice of cessation or notice of completion upon cessation of rehabilitation on the Development for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims of lien against the Property. Grantee authorizes the County, but without any obligation, to record any notices of completion or cessation of labor, or any other notice that the County deems necessary or desirable to protect its interest in the Development and Property. Section 3.14 Inspections. Grantee shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Development by the County and by public authorities during reasonable business hours for the purposes of determining compliance with this Agreement. Section 3.15 Approved Development Budget; Revisions to Budget. As of the date of this Agreement, the County has approved the Approved Development Budget. Grantee shall submit any required amendments to the Approved Development Budget to the County for approval within five (5) days of the date Grantee receives information 12 863\72\465300.1 indicating that actual costs of the Development vary or will vary from the costs shown on the Approved Development Budget. Written consent of the County shall be required to amend the Approved Development Budget. Section 3.16 Relocation. (a) No later than Grantee shall submit to the County for approval a Relocation Plan for the Development (the "Relocation Plan"). Upon receipt of the Relocation Plan, the County shall promptly review the Relocation Plan and shall approve or disapprove it within fifteen (15) days after submission. If the Relocation Plan is not approved, Grantee shall submit a revised Relocation Plan within fifteen (15) days. If the County does not approve the revised Relocation Plan, Grantee shall be in default hereunder. (b) if and to the extent that acquisition and rehabilitation of the Development results in the permanent or temporary displacement of residential tenants, homeowners, or businesses, then Grantee shall comply with all applicable local, state, and federal statutes and regulations, (including without limitation California Government Code Section 7260 et seq. and accompanying regulations) with respect to relocation planning, advisory assistance, and payment of monetary benefits. Grantee shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying with such relocation laws. The Grantee shall defend the County against any claim for damages, compensation, fines, penalties, relocation payments or other amounts arising out of the failure or alleged failure of any person or entity (including the Grantee or the County ) to satisfy relocation obligations related to the acquisition and rehabilitation of the Development. ARTICLE 4 GRANT REQUIREMENTS Section 4.1 Financial Accountings and Post-Completion Audits. No later than sixty (60) days following completion of rehabilitation of the Development, Grantee shall provide to County a financial accounting of all sources and uses of funds for the Development. No later than one hundred fifty (150) days following completion of rehabilitation of the Development, Grantee shall submit an audited financial report showing the sources and uses of all funds utilized for the Development. Section 4.2 Annual Operating, Budget. . At the beginning of each year of the Term, Grantee shall provide to the County an annual budget for the operation of the Development. Unless rejected by the County in writing, said budget shall be deemed accepted. If rejected by the County in whole or in part; Grantee shall submit a new or corrected budget within thirty (30) calendar days of notification of the County's rejection and the reasons therefor. The provisions of this Section relating to time periods for resubmission of new or corrected budgets shall continue to apply until such budget has been approved by the County. 13 863\72\465300.1 Section 4.3 Information. Grantee shall provide any information reasonably requested by the County in connection with the Development, including (but not limited to) any information required by DMH in connection with Grantee's use of the Grant funds. Section 4.4 Records. (a) The Grantee shall keep and maintain at the Development, or elsewhere with the County's written consent, full, complete and appropriate books, record and accounts relating to the Development, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail Grantee's compliance with the terms and provisions of this Agreement. Books, records and accounts relating to Grantee's compliance with the terms, provisions, covenants and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied, and shall be consistent with requirements of this Agreement. All such books, records, and.accounts shall be open to and available for inspection and copying by DMH, the County, its auditors or other authorized representatives at reasonable intervals during normal business hours. Copies of all tax returns and other reports that Grantee may be required to furnish to any governmental agency shall at all reasonable times be open for inspection by the County at the place that the books, records and accounts of the Grantee are kept. The Grantee shall preserve such records for a period of not less than five (5) years after the creation of such records. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Grant is pending at the end of the record retention period stated herein, then the Grantee shall retain such records until such action and all related issues are resolved. Such records shall include all invoices, receipts, and other documents related to expenditures from the Grant funds. Records must be kept accurate and current. Such records shall include but not be limited to: (i) Records providing a full description of the activities undertaken with the use of the MHSA Funds. (ii) Records required to determine the eligibility of activities. (iii) Records documenting compliance with the fair housing and equal opportunity requirements, as applicable. (iv) Records documenting compliance with the Social Services Plan approved by the County. (b) The County shall notify Grantee of any records it deems insufficient. Grantee shall have fifteen (15) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the County in such notice, or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Grantee shall begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably.possible. 14 863\72\465300.1 Section 4.5 Audits. Each year, Grantee shall provide the County with a copy of Grantee's annual audit, which shall include information on all of Grantee's activities and not just those pertaining to the Development. In addition, the County or any designated agent or employee of the County at any time shall be entitled to audit all of Grantee's books, records, and accounts pertaining thereto. Such audit shall be conducted during normal business hours at the principal place of business of Grantee and other places where records are kept. Immediately after the completion of an audit, the.County shall deliver a copy of the results of such audit to Grantee. Section 4.6 Hazardous Materials. (a) Grantee 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 including, but not limited to, soil and ground water conditions. Grantee 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 used in rehabilitation of projects like the Development or kept and used in and about residential property of this type. (b) Grantee shall immediately advise the County in writing if at any time it receives written notice of(i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Grantee 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 Grantee 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 are hereinafter referred to as "Hazardous Materials Claims"); and (iii) Grantee'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" (as defined in California Health and Safety Code Section 25117.4) under the provision of California Health and Safety Code, Sections 25220 et seg., 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. (c) The County 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 Grantee. Grantee shall indemnify and hold harmless the County 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, 15 863\72\465300.1 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 the County in connection with clauses (a).and (b), including but not limited to reasonable attorneys' fees and consultant's fees. This indemnification applies whether or not any government agency has issued a cleanup order. Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property; (2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the marketing of any rental space on the Property: and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties). This obligation to indemnify shall survive termination of this Agreement. (d) Without the County's prior written consent, which shall not be unreasonably withheld, Grantee 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 the County's reasonable judgment, impair the value of the County's security hereunder; provided, however, that the County'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 the County's consent before taking such action. provided that in such event Grantee shall notify the County as soon as practicable of any action so taken. The County agrees not to withhold its consent, where such consent is required hereunder, if(i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Grantee will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Grantee establishes to the reasonable satisfaction of the County that there is no reasonable alternative to such remedial action which would result in less impairment of the County's security hereunder; or(iv) the action has been agreed to by the County. (e) Grantee hereby acknowledges and agrees that (i) this Section is intended as the County's written request for information (and Grantee'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 Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an "environmental provision" for purposes of California Code of.Civil Procedure Section 736. (f) In the event that any portion of the Property is determined to be "environmentally impaired" (as that term is defined in California Code.of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the County's or the trustee's rights and remedies under the Deed of Trust, the County may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien 16 863\72\465300.1 on such environmentally impaired or affected portion of the Property and (2) exercise (i) the rights and remedies of an unsecured creditor, including reduction of its claim against the Grantee to judgment, and (ii) any other rights-and remedies permitted by law. For purposes of determining the County's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Grantee 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)(1), 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 Grantee 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 County 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 lesser of ten percent (10%) and the maximum rate permitted by law, until paid, shall be added to the indebtedness secured by the Deed of Trust and shall be due and payable to the County upon its demand made at any time following the conclusion of such action. Section 4.7 Maintenance and Damage. (a) During the course of both rehabilitation and operation of the Development, Grantee shall maintain the Development and the Property in good repair and in a neat, clean and orderly condition. If there arises a condition in contravention of this requirement, and if Grantee has not cured such condition within thirty (30) days after receiving a County notice of such a condition, then in addition to any other rights available to the County, the County shall have the right to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property. (b) Subject to the requirements of senior lenders, and if economically feasible in the County's reasonable judgment after consultation with the.Grantee, if any improvement now or in the future on the Property is damaged or destroyed, then Grantee shall, at its cost and expense, diligently undertake to repair or restore such improvement consistent with the plans and specifications approved by the County with such changes as have been approved by the County. Such work or repair shall be commenced no later than the later of one hundred twenty (120) days, or such longer period approved by the County in writing, after the damage or loss occurs or thirty (30) days following receipt of the insurance proceeds,'and shall be complete within one (1) year thereafter. Any insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, then Grantee shall make up the deficiency. If Grantee does not promptly make such repairs then any insurance proceeds collected for such damage or destruction shall be promptly delivered by the Grantee to the County as a special repayment of the Grant, subject to the rights of the senior lenders, if any. Section 4.8 Fees and Taxes. Grantee shall be solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the 17 863\72\46300.1 Development to the extent owned by Grantee, and shall pay such charges prior to delinquency. However, Grantee shall not be required to pay and discharge any such charge so long as (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the County, Grantee deposits with the County any funds or other forms of assurance that the County in good faith from time to time determines appropriate to protect the County from the consequences of the contest being unsuccessful. Section 4.9 Notice of Liti ag tion. Grantee shall promptly notify the County in writing of any litigation which has the potential to materially affect Grantee or the Property and of any claims or disputes that involve a material risk of such litigation. Section 4.10 Operation of Development as MHSA Eligible Housing. (a) Promptly after completion of rehabilitation. Grantee shall operate the Development as permanent affordable housing for MHSA Eligible Tenants consistent with (i) DMH's requirements for use of the MHSA Funds, and (ii)the Regulatory Agreement. (b) In leasing the Units, Grantee shall use a form of lease.agreement approved by the County. (c) In marketing the Units, Grantee shall comply with the procedures set forth in the Marketing Plan approved by the County. (d) Grantee represents and warrants that Grantee has determined the income eligibility of each existing Tenant household in the Development pursuant to certification procedures which have been approved by the County. Grantee must determine the income eligibility of each new Tenant household in the Development pursuant to the County's approved tenant certification procedures within sixty (60) days before the household's expected occupancy of one of the Development's Units. The Grantee shall certify each Tenant's income on an annual basis. (e) The maximum household income of a Tenant in the Development, and the total charges for rent, utilities, and related services to each Tenant, shall be maintained as provided in the Regulatory Agreement. (f) Throughout the term of this Agreement, Grantee shall ensure that social services are provided in accordance with the Social Services Plan approved by the County. Each year, Grantee shall obtain a certification regarding a Tenant's MHSA Eligibility in accordance with Section 3.1(b) of the Regulatory Agreement. Section 4.11 Nondiscrimination. (a) The Grantee covenants by and for itself and 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, religion, creed. age, disability, sex, sexual orientation, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or 18 863\72\46300.1 enjoyment of the Property, 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 Property. The foregoing covenant shall run with the land. (b) Nothing in this Section shall prohibit the Grantee from requiring tenant households for all six (6) units in the Development to be available to and occupied by MHSA Eligible Tenants. Section 4.12 Transfer. (a) For purposes of this Agreement, "Transfer" shall mean any sale, assignment, or transfer, whether voluntary or involuntary, of(i) any rights and/or duties under this Agreement, and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Development is transferred and Grantee retains title. The term "Transfer" shall exclude the leasing of any single Unit in the Development to an occupant in compliance with the Regulatory Agreement. County Deputy Director—Redevelopment is authorized to execute assignment and assumption agreements on behalf of the County to implement any approved Transfer. (b) No Transfer shall be permitted without the prior written consent of the County, which the County may withhold in its sole discretion.The Grant shall automatically accelerate and be due in full upon any Transfer made without the prior written consent of the County. (c) The County approves the deed of trust securing the HCD Loan. Section 4.13 Insurance Requirements. The Grantee shall maintain the following insurance coverage throughout the Term of the Grant: (a) Worker's Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident. (b) Comprehensive General Liability insurance with limits not less than Two Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform .Property Damage. Products and Completed Operations. (c) 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 Damage, including coverages for owned, non-owned and hired vehicles, as applicable. (d) Builders' risk insurance during the course of rehabilitation, and upon completion of rehabilitation, property insurance covering the Development, in form appropriate 19 863\72\465300.1 for the nature of such property, covering all risks of loss, excluding earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the County, naming the County as a Loss Payee, as its interests may appear. Flood insurance shall be obtained if required by applicable federal regulations. (e) Blanket Fidelity Bond covering all officers and employees, for loss of Grant proceeds caused by dishonesty, in an amount not less than Five Hundred Sixty Four Thousand Three Hundred Thirty Two Dollars ($564,332) naming the County a Loss Payee, as its interests may appear. (f) The Grantee shall cause any general contractor, agent, or subcontractor working on the Development under direct contract with the Grantee or subcontract to maintain insurance of the types and in at least the minimum amounts described in subsections (a), (b), and (c) above, except that the limit of liability for comprehensive general liability insurance for subcontractors shall be One Million Dollars ($1,000,000), and shall require that such insurance shall meet all of the general requirements of subsections (f),{g), and (h) below, including, without limitation, the requirement of subsection (g). Liability and Comprehensive Automobile Liability insurance to be maintained by such contractors and agents pursuant to this subsection shall name as additional insureds the County, its officers, agents, employees and members of the County Board of Supervisors. (g) The required insurance shall be provided under an occurrence form, and Grantee shall maintain the coverage described in subsections (a) through (d) 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. (h) Comprehensive General Liability, Comprehensive Automobile Liability and Property insurance policies shall be endorsed to name as an additional insured the County and its officers, agents, employees and members of the County Board of Supervisors. (i) All policies and bonds shall contain (a)the agreement of the insurer to give the County at least thirty (30) days' notice prior to cancellation (including, without limitation, for non-payment of premium) or any material change in said policies; (b) an agreement that such policies are primary and non-contributing with any insurance that may be carried by the County; (c) a provision that no act or omission of the Grantee shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (d) a waiver by the insurer of all rights of subrogation against the County and its authorized parties in connection with any loss or damage thereby insured against. ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF GRANTEE Section 5.1 Representations and Warranties. Grantee hereby represents,and warrants to the County as follows: 20 863\72\16300.1 (a) Organization. Grantee is a duly organized California nonprofit public benefit corporation, validly existing and in good standing under the laws of the State of . California and has the power and authority to own its property and carry on its business as now being conducted. (b) Authority of Grantee. Grantee has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (c) Authority of Persons Executing Documents. This Agreement and the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered. pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Grantee, and all actions required under Grantee's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken. (d) Valid Binding Agreements. This Agreement and the Grant Documents and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of.Grantee enforceable against it in accordance with their respective terms. (e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement and the Grant Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof,, will conflict with or result in.a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever binding on Grantee, or any provision of the organizational documents of Grantee, or will conflict with or constitute a breach of or a default under any agreement to which Grantee is a.party, or will result in the creation or imposition of any lien upon any assets or property of Grantee, other than liens established pursuant hereto. (f) Compliance With Laws: Consents and Approvals. The rehabilitation of the Development will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules.and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency. (g) Pending Proceedings. Grantee is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Grantee, threatened against or affecting Grantee or the Development, at law or in equity, before or by any court, 21 863\72\4653o6.1 board, commission or agency whatsoever which might, if determined adversely to Grantee, materially impair the security to be given to the County pursuant hereto. (h) Title to Land. At the time of recordation of the Deed of Trust, Grantee will have good and marketable fee title to the Development and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than liens for current real property taxes and liens in favor of the County or approved in writing by the County. (i) Financial Statements. The financial statements of Grantee and other financial data and information furnished by Grantee to the County fairly and accurately present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of Grantee from that shown by such financial statements and other data and information. Sufficient Funds. Grantee holds sufficient funds and/or binding commitments for sufficient funds to complete the acquisition of the Property and the rehabilitation of the Development in accordance with the plans and specifications approved by the County. (k) Taxes. Grantee and its subsidiaries have filed all federal and other material tax returns and reports required to be filed, and have paid all federal and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their income or the Property otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principals. There is no proposed tax assessment against Grantee or any of its subsidiaries that could; if made, be reasonably expected to have a material adverse effect upon the Property, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Grantee and its subsidiaries, taken as a whole, which would be expected to result in a material impairment of the ability of Grantee to perform under any Grant Document to which it is a party, or a material adverse effect upon the legality, validity, binding effect or enforceability against Grantee of any Grant Document.... ARTICLE 6 DEFAULT AND REMEDIES Section 6.1 Events of Default. Each of the following shall constitute a "Default" by Grantee under this Agreement: (a) Failure to Rehabilitate. Failure of Grantee to commence and complete rehabilitation of the Development within the times set forth in Article 3 above. (b) Breach of Covenants. Failure by Grantee to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the Grant Documents, and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the County to the Grantee or, if the breach cannot be cured within thirty (30) days, the Grantee shall not be in breach so long as Grantee is diligently undertaking to cure such breach and such 863\72\465300.1 breach is cured within ninety (90) days., provided, however, that if a different period or notice requirement is specified under any other section of this Article 6, the specific provisions shall control. (c) Default Under Loans. A default is declared under any other financing for the Development by the lender of such financing. (d) Insolvency. A court having jurisdiction shall have made or entered any decree or order (i) adjudging Grantee to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Grantee or seeking any arrangement for Grantee under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of Grantee in bankruptcy or insolvency or for any of their properties, (iv) directing the winding up or liquidation of Grantee if any such decree or order described in clauses (i) to (iv), inclusive,shall have continued unstayed or undischarged for a period of ninety (90) days: or (v) Grantee shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. The occurrence of any of the events of Default in this paragraph shall act to accelerate automatically, without the need for any action by the County, the indebtedness evidenced by this Agreement. (e) Assignment; Attachment. Grantee shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) calendar days after such event or, if sooner, prior to sale pursuant to such sequestration; attachment, or execution. The occurrence of any of the events of default in this paragraph shall act to accelerate automatically, without the need for any, action by the County, the indebtedness evidenced by this Agreement. (f) Suspension; Termination. Grantee shall have voluntarily suspended its business or commenced termination or dissolution. (g) Liens on Property and the Project. There shall be filed any claim of lien (other than liens approved in writing by the County) against the Development or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Grant and the continued maintenance of said claim of lien or notice to withhold for a period of twenty (20) days, without discharge or satisfaction thereof or provision therefor (including, without limitation, the posting of bonds) satisfactory to the County. (h) Condemnation. The condemnation, seizure, or appropriation of all or the substantial part of the Property and the Development. (i) Unauthorized Transfer. Any Transfer other than as permitted by Section 4.12. (j) Representation or Warranty Incorrect. Any Grantee representation or warranty contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the County in connection with any of the Grant Documents, proving to have 23 863\72\465300.1 been incorrect in.any material respect when made. After issuance of the certificates of occupancy for the Development, Default may be declared under this subsection only if the. failure of representation or warranty also has a material adverse effect on the operation of the Development. In the event that the Grantee is a limited partnership or limited liability company, then the occurrence of any of the events set forth in subsections (e), (f), or (g) by the Grantee's general partner or managing member, as applicable, shall also constitute a Default under this Agreement. Section 6.2 Remedies. The occurrence of any Default hereunder following the expiration of all applicable notice and cure periods will, either at the option of the County or automatically where so specified, relieve the County of any obligation to make or continue the Grant and shall give the County the right to proceed with any and all remedies set forth in this Agreement and the Grant Documents, including but not limited to the following: (a) Repayment of Grant. The County shall have the right to cause the Grant, together with any accrued interest thereon as described in Section 2.2, to become immediately due and payable. The Grantee waives all right to presentment, demand, protest or notice of protest or dishonor. The County may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the County as a creditor and secured party under the law including the Uniform Commercial Code, including foreclosure under the Deed of Trust. The Grantee shall be liable to pay the County on demand all reasonable expenses, costs and fees (including, without limitation, reasonable attorney's fees) paid or incurred by the County in connection with the collection of the Grant and the preservation, maintenance, protection, sale, or other disposition of the security given for the Grant. (b) Specific Performance. The County shall have the right to mandamus or other suit, action or proceeding at law or in equity to require Grantee to perform its obligations and covenants under the Grant Documents or to enjoin acts on things which may be unlawful or in violation of the provisions of the Grant Documents. (c) Right to Cure at Grantee's Expense. The County shall have the right (but not the obligation) to cure any monetary default by Grantee under a grant or loan secured by the Development. The Grantee agrees to reimburse the County for any funds advanced by the County to cure a monetary default by Grantee upon demand therefor, together with interest thereon at the lesser of the maximum rate permitted by law and ten percent (10%)per annum (the "Default Rate") from the date of expenditure until the date of reimbursement. Section 6.3 Right of Contest. Grantee shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute a Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the County or the rights of the County hereunder. 24 863\72\465300.1 Section 6.4 Remedies Cumulative. No right, power, or remedy given to the County by the terms of this Agreement or the Grant Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the County by the terms of any such instrument, or by any statute or otherwise against Grantee and any other person. Neither the failure nor any delay on the part of the County to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the County of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. ARTICLE 7 GENERAL PROVISIONS Section 7.1 Relationship of Parties. Nothing contained in this Agreement shall be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the County and Grantee or its agents, employees or contractors, and Grantee shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. Grantee has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regards to the rehabilitation and operation of the Development, Grantee shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and shall include requirements in each contract that contractors shall be solely responsible for similar matters relating to their employees. Grantee shall be solely responsible for its own acts and those of its agents and employees. Section 7.2 No Claims. Nothing contained in this Agreement shall create or justify any claim against the County by any person that Grantee may have employed or with whom Grantee may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the purchase of the Property, the rehabilitation or operation of the Development, and Grantee shall include similar requirements in any contracts entered into for the rehabilitation or operation of the Development. Section 7.3 Amendments. No alteration or variation of the terms of this Agreement shall be valid unless made in writing by the Parties. The County Deputy Director—Redevelopment is authorized.to execute on behalf of the County amendments to the Grant Documents or amended and restated Grant Documents as long as any material change in the amount or terms of the Grant is approved by the County Board of Supervisors, or in the event the amounts or terms of financing provided by 25 863\72\465300.1 other parties for the Development is revised, requiring conforming amendments to the County Grant documents. Section 7.4 Indemnification. The Grantee shall indemnify, defend and hold the County harmless against any and all claims, suits, actions, losses and liability of every kind, nature and description made against it and expenses (including reasonable attorneys' fees) which arise out of or in connection with this Agreement, including but not limited to the purchase of the Property, development, rehabilitation, marketing and operation of the Development, except to the extent such claim arises from the grossly negligent or willful misconduct of the County, its agents, and its employees. The provisions of this Section shall survive the expiration of the Term and the reconveyance of the Deed of Trust. Section 7.5 Non-Liability of County Officials, Employees and Agents. No member, official, employee or agent of the County shall be personally liable to Grantee in the event of any default or breach by the County or for any amount which may become due to Grantee or its successor or on any obligation under the terms of this Agreement. Section 7.6 No Third Party Beneficiaries. There shall be no third party beneficiaries to this Agreement. Section 7.7 Discretion Retained By County.- The County's execution of this Agreement in no way limits the discretion of the County in the permit and approval process in connection with rehabilitation of the Development. Section 7.8 Conflict of Interest. (a) Except for approved eligible administrative or personnel costs, no person described in Section 7.8(b) below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person's tenure. Grantee shall exercise due diligence to ensure that the prohibition in this Section 7.8(a) is followed. (b) The conflict of interest provisions of Section 7.8(a) above apply to any person who is an employee, agent, consultant, officer, or any immediate family member of such person, or any elected or appointed official of the County, or any person related within the third (3rd) degree of such person. 26 863\72\465300.1 (c) In accordance with Government Code..Section 1090 and the Political Reform Act, Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of the Grantee, or immediate family member of any of the preceding, shall make or participate in a decision, made by the County or a County board, commission or committee, if it is reasonably foreseeable.that the decision will have a material effect on any source of income, investment or interest in real property of that person or Grantee. Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code section 87100 et sec., its implementing regulations manual and codes, and Government Code section 1090. Section 7.9 . Notices, Demands and Communications. Formal notices, demands, and communications between the Parties 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 by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows: County: County of Contra Costa Community Development Department 2530 Arnold Drive, Suite 190 Martinez. California 94553 Attention: Deputy Director- Redevelopment Grantee: Rubicon Programs, Inc. 2500 Bissell Avenue Richmond, CA 94804 Attn: Executive Director 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. 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 7.10 Applicable Lay. This Agreement shall be governed by and construed in accordance with California law. Section 7.1 1 Parties Bound. Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, legal representatives, successors, and assigns. This Agreement is intended to run with the land and shall bind Grantee and its successors and assigns in the Property and the Development for the 27 863\72\46-5300.1 entire Term, and the benefit hereof shall inure to the benefit of the County and its successors and assigns. Section 7.12 Attorneys' Fees. If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other Party. Section 7.13 Severability. If any term 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 full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. Section 7.14 Force Majeure. In addition to specific provisions of this Agreement, performance by either Party shall not be deemed to be in Default where delays or defaults are due to war, insurrection, strikes, lock- outs, riots, floods, earthquakes, fres, quarantine restrictions, freight embargoes; lack of transportation, or court order. 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 ten (10) days from the commencement of the cause and such extension of time is not rejected in writing by the other Party within ten(l 0) days of receipt of the notice. In no event shall the County be required to agree to cumulative delays in excess of one hundred eighty (180) days. Section 7.15 County Approval. Whenever this Agreement calls for County approval or consent, of a submission or proposed action of Grantee, the written approval or consent of the County Deputy Director- Redevelopment shall constitute the approval or consent of the County, without further authorization required from the County Board of Supervisors. The County hereby authorizes the County Deputy Director-Redevelopment to deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Grant and the existence of Grantee defaults under the Grant Documents. Any consents or approvals required under this Agreement shall not be unreasonably withheld or made, except where it is specifically provided that a sole discretion standard applies. The County shall not unreasonably delay in reviewing and approving or disapproving any proposal by Grantee made in connection with this Agreement. Section 7.16 Waivers. Any waiver by the County of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the County to take action on any .breach or default of Grantee or to pursue any remedy allowed under this Agreement or applicable law. Any extension.of time granted to Grantee to perform any obligation under this 28 863\72\=65300.1 Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the County to any act or omission by Grantee shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the County's written consent to future waivers. Section 7.17 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions. Section 7.18 Entire Understanding of the Parties. , This Agreement constitutes the entire understanding and agreement of the Parties with respect to the Grant. Section 7.19 Multiple Originals; Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original. and may be signed in counterparts. Remainder of Page Intentionally Left Blank 29 863\72\465300.1 WHEREAS, this Agreement has been entered into by the undersigned as of the date first above written. COUNTY: COUNTY OF CONTRA COSTA; a political subdivision of the State of California By: James Kennedy Deputy Director- Redevelopment Form Approved by Contra Costa County Counsel on , 2007 GRANTEE: RUBICON PROGRAMS, INC., a California nonprofit public benefit corporation By: Name:. Its: 30 863\72\465300.1 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY The land is situated in the State of California, County of Contra Costa, and is described as follows: A-1 863\72\465300.1 • s EXHIBIT B APPROVED DEVELOPMENT BUDGET B-I 863\72\465300.1 EXHIBIT C SCOPE OF WORK C-1 863\72\46300.1