HomeMy WebLinkAboutMINUTES - 04142007 - C.85 Contra
TO: BOARD OF SUPERVISORS
Costa
FROM: Dennis M. Barry, AICP
.�°°
c�
Community Development-Director sTq-�e�KT' County
DATE: August 14, 2007 C
-3 lc
SUBJECT: APPROVAL OF LEGAL DOCUMENTS AND CEQA DETERMINATION FOR VILLA
VASCONCELLOS IN WALNUT CREEK
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 $700,000 in FY 2006/07 Mental Health Services Act (MRSA) to Villa
Vasconcellos, L.P., a California limited partnership, for the Villa Vasconcellos senior affordable
housing project in Walnut Creek; and
(2) FIND, the project is exempt from the California Environmental Quality Act pursuant to Public
Resources Code Section 21159.23; 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
COMMENDATION OF COUNTY ADMINISTRATOR RECOMND TION O OARD COMM TEE
PPROVE OTHER
SIGNATURES
ACTION OF B D 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
AYE NOES: ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUP RVISORS ON THE DATE SHOWN.
Contact: Kara Douglas (925/335-7223) ATTESTED
cc: Community Development Department (CDD) JO CULLEN, CILEWK F T E
County Counsel BOARD OF SUPERVISORS AND
Auditor-Controller COUNTY ADMINISTRATOR
RCD via CDD
BY - l , DEPUTY
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 $700,000 to Villa Vasconcellos L.P. for Villa
Vasconcellos apartments in Walnut Creek. This project involves the demolition of an abandoned
Alzheimer facility and the new construction of 69 one-bedroom units and 1 two-bedroom manager's
unit on a 1.37 acre site. Construction has begun on the project and is expected to be completed in
December 2007.
The 69 one-bedroom units will be affordable to and occupied by extremely low and low income
seniors. Twenty-five of the units are reserved for extremely low income seniors with disabilities.
The MHSA funds are intended to be used to support three units for seniors with psychiatric
disabilities who are being served through the County's Mental Health Service Act FSP.
The budget for this project is $20,970,935. Additional funds include City of Walnut Creek
($2,522,265), HOME Investment Partnership Act (HOME) Consortium ($2,225,000), Housing
Opportunities for Persons with AIDs (HOPWA) ($351,863), Federal Home Loan Bank Affordable
Housing Program (AHP) ($500,000), California Housing Finance Authority bond construction loan
($11,435,000), State Multifamily Housing Program (MHP) ($4,278,150), four percent low income
housing tax credits ($8,091,719), and developer contribution ($1,162,234).
The County legal documents for this project will include the following (the "Loan Documents"):
• MHSA Loan Agreement
• Promissory Note
• 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 Loan Agreement
Promissory Note
Deed of Trust with Assignment of Rents and Security Agreement
Regulatory Agreement and Declaration of Restrictive Covenants
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) 335-7230 Contact Person: Maureen Toms.
Project Description: Villa Vasconcellos Apartments (Walnut Creek),The activity consists of the demolition of an existing
care facility and the construction of 70 affordable apartments for lower income seniors.The County is providing$700,000 in
Mental Health Services Act funds to support the construction of three units.
Project Location: 1515 Geary Road, Walnut Creek CA
This project is exempt from CEQA as a:
Ministerial Project (Sec. 15268) X Other Statutory Exemption, Section 21159.23
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 not subject to the California Environmental Quality Act (CEQA) pursuant to
Public Resources Code Section 21159.23. 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
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:
Resources for Community Development
2730 Telegraph Ave
Berkeley, CA 94705
County Clerk Fee $50 Due
A:\SMSTNOE.FRM
(Form Revised 2/97)
Agenda Date: Item No.:
Subject: App rgvwl -Df C C ia,4 Les&-1 . Presenter:
1�D C 4 yh �Vr� S t0 r
1)'111" Vt.s c.v c. ill os ►,, Whl
hw� C.vca�L
Agenda 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
Documents on file with the Clerk of the Board—A JC e S VL 1 a+o r,,1
Fro w►,s s o ,, ,j (V o f d e e -0f J 1"LA-►+-, L o 0.vx 14 5 v- e,k, ►11-�
❑ Document or attachments included separate from this packet
(voluminous/bound/oversize%olor pages, etc.)
.-.�...`_ Contra
TO: BOARD OF SUPERVISORS
Costa
_��'
FROM: Dennis M. Barry, AICP 4 County
Community Development Director
DATE: August 14, 2007
SUBJECT: APPROVAL OF LEGAL DOCUMENTS AND CEQA DETERMINATION FOR VILLA
VASCONCELLOS IN WALNUT CREEK
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$700,000 in FY 2006/07 Mental Health Services Act(MHSA)to Villa
Vasconcellos, L.P., a California limited partnership, for the Villa Vasconcellos senior affordable
housing project in Walnut Creek; and
(2) FIND, the project is exempt from the California Environmental Quality Act pursuant to Public
I Resources Code Section 21159.23; and
i
EUVED (3) DIRECT the Community Development Director, or designee, to file a Notice of Exemption for
this project with the County Clerk; and
(0 8 2007 (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.
0 OF SUPERVISORS iJ
HA COSTA CO. �(�
CONTINUED ON ATTACHMENT: ®YES ❑ NO SIGNATURE LIn"Tl�w
RECOMMENDATION OF COUNTY ADMINISTRATOR _RECOM ND TION O OARD COMM EE
j I APPROVE _OTHER
i
r-- _
SIGNATURE(S):
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(925/335-7223) ATTESTED
cc: Community Development Department(CDD) JOHN CULLEN,CLERK OF THE
County Counsel BOARD OF SUPERVISORS AND
Auditor-Controller COUNTY ADMINISTRATOR
RCD via CDD
i--- — BY ,DEPUTY
C)A
� Oh'
Cex- c-,f 1z oc�ab �r
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 $700,000 to Villa Vasconcellos L.P. for Villa
Vasconcellos apartments in Walnut Creek. This project involves the demolition of an abandoned
Alzheimer facility and the new construction of 69 one-bedroom units and 1 two-bedroom manager's
unit on a 1.37 acre site. Construction has begun on the project and is expected to be completed in
December 2007.
The 69 one-bedroom units will be affordable to and occupied by extremely low and low income
seniors. Twenty-five of the units are reserved for extremely low income seniors with disabilities.
The MHSA funds are intended to be used to support three units for seniors with psychiatric
disabilities who are being served through the County's Mental Health Service Act FSP.
The budget for this project is$20,970,935. Additional funds include City of Walnut Creek
($2,522,265), HOME Investment Partnership Act(HOME) Consortium ($2,225,000), Housing
Opportunities for Persons with AIDs (HOPWA) ($351,863), Federal Home Loan Bank Affordable
Housing Program (AHP) ($500,000), California Housing Finance Authority bond construction loan
($11,435,000), State Multifamily Housing Program (MHP) ($4,278,150), four percent low income
housing tax credits ($8,091,719), and developer contribution ($1,162,234).
The County legal documents for this project will include the following (the"Loan Documents"):
• MHSA Loan Agreement
• Promissory Note
• 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 Loan Agreement
Promissory Note
Deed of Trust with Assignment of Rents and Security Agreement
Regulatory Agreement and Declaration of Restrictive Covenants
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) 335-7230 Contact Person: Maureen Toms.
Project Description:Villa Vasconcellos Apartments (Walnut Creek), The activity consists of the demolition of an existing
care facility and the construction of 70 affordable apartments for lower income seniors.The County is providing$700,000 in
Mental Health Services Act funds to support the construction of three units.
Project Location: 1515 Geary Road, Walnut Creek CA
This project is exempt from CEQA as a:
Ministerial Project (Sec. 15268) X Other Statutory Exemption, Section 21159.23
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 not subject to the California Environmental Quality Act (CEQA) pursuant to
Public Resources Code Section 21159.23. 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:
Resources for Community Development
2730 Telegraph Ave
Berkeley, CA 94705
County Clerk Fee $50 Due
A:\SMSTNOE.FRM
(Form Revised 2/97)
MHSA LOAN AGREEMENT
Between
County of Contra Costa
and
Villa Vasconcellos, L.P.
VILLA VASCONCELLOS APARTMENTS
r
863\66\459484.3
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND EXHIBITS........................................................................ 2
Section1.1 Definitions...............................................................................................2
Section1.2 Exhibits. ..................................................................................................4
ARTICLE 2 LOAN PROVISIONS .........................................................................................4
Section2.1 Loan. .......................................................................................................4
Section2.2 Interest.............................................................................6.......................4
Section 2.3 Use of Loan Funds...................................................................................4
Section2.4 Security. ..................................................................................................5
Section 2.5 Conditions Precedent to Disbursement of Loan Funds..............................5
Section 2.6 Conditions Precedent to Disbursement of Retention.................................6
Section 2.7 Repayment Schedule. 7
Section 2.8 Non-Recourse..........................................................................................7
ARTICLE 3 CONSTRUCTION OF THE DEVELOPMENT.................................................. 8
Section 3.1 Permits and Approvals...............................................................................8
Section3.2 Bid Package............................................................................................. 8
Section 3.3 Construction Contract............................................................................... 8
Section3.4 Bonds. .....................................................................................................9
Section 3.5 Commencement of Construction..............................................................9
Section 3.6 Completion of Construction......................................... .................9
Section 3.7 Construction Pursuant to Plans and Laws; Prevailing
Wages; Accessibility....................................................6...........................9
Section 3.8 Marketing Plan and Services Plan.......................................................:.. 10
Section 3.9 Equal Opportunity.................................................................................. 11
Section 3.10 Minority and Women-Owned Contractors.............................................. 1 1
Section 3.11 Progress Reports.................................................................................... 12
Section 3.12 Construction Responsibilities................................................................. 12
Section 3.13 Mechanics Liens, Stop Notices, and Notices of Completion................... 12
Section 3.14 Inspections................6......................................................6..................... 13
Section 3.15 Approved Development Budget; Revisions to Budget............................ 13
Section 3.16 Developer Fee.........................................................................................13
Section 3.17 Capital Contributions............................................................................. 13
ARTICLE 4 LOAN REQUIREMENTS ................................................................................ 13
Section 4.1 Financial Accountings and Post-Completion Audits............................... 13
Section 4.2 Annual Operating Budget...................................................6................... 14
Section4.3 Information............................................................................................ 14
Section4.4 Records.................................................................................................. 14
Section4.5 Audits...........................................................................6........................ 15
Section 4.6 Hazardous Materials. ............................................................................. 15
.Section 4:7 Maintenance and Damage...................................................................... 17
Section 4.8 Fees and Taxes....................................................................................... 18
Section 4.9 Notice of Litigation................................................................................ 18
i
863\66\459484.3
TABLE OF CONTENTS
(continued) '
Page
Section 4.10 Operation of Development as MHSA Eligible Housing.......................... 18
Section 4.11 Nondiscrimination. ................................................................................ 19
Section4.12 Transfer. ...:............................................................................................ 19
Section 4.13 Insurance Requirements.........................................................................20
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BORROWER...................... 21
Section 5.1 Representations and Warranties. ............................................................21
ARTICLE 6 DEFAULT AND REMEDIES........................................................................... 23
Section 6.1 Events of Default................................................................:.................. 23
Section6.2 Remedies...............................................................................................24
Section 6.3 Right of Contest.....................................................................................25
Section 6.4 Remedies Cumulative. ...........................................................................25
ARTICLE 7 GENERAL PROVISIONS................................................................................ 26
Section 7.1 Relationship of Parties. .......................:...................................................26
Section7.2 No Claims..............................................................................................26
Section 7.3 Amendments..........................................................................................26
Section 7.4 Indemnification......................................................................................26
Section 7.5 Non-Liability of County Officials, Employees and Agents.....................27
Section 7.6 No Third Party Beneficiaries.........................................:........................27
Section 7.7 Discretion Retained By County..............................................................27
Section 7.8 Conflict of Interest.................................................................................27
Section 7.9 Notices, Demands and Communications. ...............................................27
Section 7.10 Applicable Law.......................................................................................28
Section 7.11 Parties Bound.........................................................................................28
Section 7.12 Attorneys' Fees. ................................... .......28
...................:.................
Section 7.13 Severability............................................................................................29
Section 7.14 Force Majeure........................................................................................29
Section 7.15 County Approval. ..................................................................................29
Section7.16 Waivers. ................................................................................................29
Section 7.17 Title of Parts and Sections...................................................................... 29
Section 7.18 Entire Understanding of the Parties........................................................ 30
Section 7.19 Multiple Originals; Counterpart. ............................................................30
EXHIBIT A: Legal Description of the Property
EXHIBIT B: Approved Development Budget
EXHIBIT C: Scope of Work
ii
863\66\459484.3
t
MHSA LOAN AGREEMENT
Villa Vasconcellos Apartments
This MHSA Loan 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
Villa Vasconcellos, L.P., a California limited partnership ("Borrower"), 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 ("the
Act" or "MRSA"). The Act 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 the Act and California
Code of Regulations Title 9, Section.3 100, et seq.
B. Borrower owns certain real property located at 1515 Geary Road in the City of
Walnut Creek, County of Contra Costa, State of California, as more particularly described in
Exhibit A (the "Property"). The Borrower is currently constructing a seventy(70) unit
residential building on the .Property.
C. Borrower wishes to borrow from the County and the County wishes to extend to
Borrower a loan of Seven Hundred Thousand Dollars ($700,000)to assist in the construction of
the Development(the "Loan"). The Loan consists of MHSA Funds. The Loan will be evidenced
by a promissory note executed by Borrower in favor of County and secured by a deed of trust.
D. The Loan is being made to finance construction 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 Borrower pursuant to this Agreement, the County
has classified three (3) units in the Development as MHSA Units.
E. The California Environmental.Quality Act (Public Resources Code Sections
21000 et seq.) ("CEQA") imposes no conditions on the County's consideration and approval of
this Agreement, because the project undertaken pursuant to this Agreement is exempt from
CEQA requirements under class 32 categorical exemption.
F. 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 three (3) units 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 Expenditure Plan" submitted by the County to the DMH, both of which are
required by California Code of Regulations Title 9, Section 3100, et seq.
NOW, THEREFORE, the Parties agree as follows:
1
863\66\459484.3
� T
ARTICLE 1 DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
The following capitalized terms have the meanings set forth in this Section LI wherever
used in this Agreement, unless otherwise provided:
(a) "Agreement" shall mean this MHSA Loan 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) "Approved Financing" shall mean:
(i) A HOME Loan from the County in the amount of Two Million Two
Hundred Twenty-Five.Thousand Dollars ($2,225,000) (the "County HOME Loan").
(ii) A HOW-PA Loan from the County in the amount of Three Hundred Fifty
One Thousand Eight Hundred Sixty Three Dollars ($351,863) (the "County HOPWA Loan").
(iii) A permanent financing loan from the California Housing Finance Agency
in the amount of Two Hundred Thirty-Five Thousand Dollars ($235,000) (the "CaIHFA Loan").
(iv) A loan from the City of Walnut Creek in the amount of Two Million Five
Hundred Twenty Two Thousand Two Hundred Sixty Five Dollars ($2,522,265) (the "City
Loan").
(v) A Multifamily Housing Program loan from the California Department of
Housing and Community Development in the amount of Four Million Nine Hundred Thirty Nine
Thousand One Hundred.Fifty Four Dollars ($4,939,154) (the "MHP Loan").
(vi) An Affordable Housing Program Loan in the amount of Five Hundred
Thousand Dollars ($500,000) (the "AHP Loan").
(vii) Capital contribution from the Borrower's general partner in the amount of
One Million One Hundred Sixty Four Thousand One Hundred Fifteen Dollars ($1,164,115) (the
"General Partner Equity").
(viii) Low income housing tax credit investor equity funds in the approximate
amount of Eight Million Two Hundred Eighty-Nine Thousand Four Hundred Ninety Six Dollars
($8,289,496).
(d) "Bid Package" shall mean the Borrower's proposed bid package to be made
available to potential bidders. The contents of the Bid Package are mere particularly described
in Section 3.2.
(e) "Borrower" has the meaning set forth in the first paragraph of this Agreement.
2
863\66\459484.3
(f) "County" has the meaning set forth in the first paragraph of this Agreement.
(g) "Deed of Trust" shall mean the deed of trust of even date with this Agreement
among Borrower, as Trustor, North American Title Company, as trustee, and the County, as
beneficiary, that will encumber the Development to secure repayment of the Loan and.
performance of the covenants of the Loan Documents. The form of the Decd of Trust shall be
provided by the County.
(h) "Default" shall have the meaning set forth in Section 6.1 below.
(i) "Default Rate" shall have the meaning set forth in Section 6.2(c).
0) "Development" shall mean the Property and the seventy(70) residential units
building and related improvements located thereon.
(k) "DMH" shall have the meaning set forth in Paragraph A of the Recital the
California Department of Mental Health.
(1) "Hazardous Materials shall have the meaning set forth in Section 4.6 below.
(m) "Hazardous Materials Claim" shall have the meaning set forth in Section 4.6
below.
(n) "Hazardous Materials Law" shall have the meaning set forth in Section 4.6 below.
(o) "Loan" shall have the meaning set forth in Paragraph A of the Recitals.
(p) "Loan Documents" shall mean this Agreement, the Note, the Regulatory
Agreement, and the Deed of Trust.
(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 Seven Hundred Thousand Dollars ($700,000) of
"one-time" MHSA funds obtained by the County from DMH that are utilized to fund the Loan.
(t) "MHSA Units" shall have the meaning set forth in Paragraph A of the Recitals.
(u) "Note" shall mean the promissory note of even date with this Agreement between
Borrower and the County evidencing Borrower's obligation to repay the Loan. The form of the
Note shall be provided by the County.
(v) "Parties" shall mean the County and Borrower.
(w) "Property" has the meaning set forth in paragraph B of the Recitals.
3
863\66\459484.3
W. "Regulatory Agreement" shall mean the Regulatory Agreement and Declaration
of Restrictive Covenants between the County and Borrower associated with the Loan to be
recorded against the Property.
(y) "Retention Amount" shall. mean the Ten Thousand Dollars ($10,000) of MHSA
Funds set forth in Section 2.6 below.
(z) "Scope of Work" shall mean the scope of work for the construction of the
Development more particularly set forth as Exhibit C.
(aa) "Tenant" shall mean the tenant household occupying a unit in the Development.
(bb) "Term" shall have the meaning set forth in Section 2.7(a)below.
(cc) "Transfer" shall have the meaning set forth in Section 4.12 below.
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 LOAN PROVISIONS
Section 2.1 Loan.
The County shall loan to the Borrower the Loan in the principal amount of Seven
Hundred Thousand Dollars ($700,000) consisting of MHSA Funds for the purposes set forth in
Section 2.3 of this Agreement. The obligation to repay the Loan shall be evidenced by the Note
in the form provided by the County.
Section 2.2 Interest.
(a) No Interest. Subject to the provisions of Section 2.2(b) below, the outstanding
principal balance of the Loan shall not accrue any interest.
(b) Default Interest. In the event of a Default, interest on the Loan shall begin to
accrue, as of the date of Default and continuing until such time as the Loan 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 Loan Funds.
4
863\66\459484.3
(a) The Borrower shall use the Loan to fund the construction of the Development
consistent with the Approved Development Budget, and the Scope of Work.
(b) The Borrower shall not use the Loan funds for any other purposes without the
prior written consent of the County.
Section 2.4 Security:
Borrower shall secure its obligation to repay the Loan, as evidenced by the Note, 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 Approved Financing; if any; provided however that the
County requires that the lenders of the Approved Financing who have deeds of trust and other
encumbrances recorded against the Property provide adequate rights to cure any defaults by
Borrower including (i) providing the County or its successor copies of any notices of default at
the same time and in the same manner as provided to Borrower and (ii) providing the County
with a cure period of at.least sixty(60) days to cure.
Section 2.5 Conditions Precedent to Disbursement of Loan-Funds.
The maximum amount of funds to be disbursed pursuant to this Section 2.5 shall not
exceed the amount of the Loan less the Retention Amount. The County shall not be obligated to
make any disbursements of Loan proceeds, or take any.other action under the Loan Documents
unless the following conditions precedent are satisfied prior to each such disbursement of Loan
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 Loan Documents.
(b) Borrower has executed and delivered the Loan Documents to the County and any
other instruments and policies required under the Loan Documents.
(c) Borrower has delivered to the County a copy of a corporate authorizing resolution
authorizing Borrower's execution of the Loan 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 Loan, 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 Borrower shall provide whatever documentation
(including an indemnification agreement), deposits or surety is reasonably required by the title
company in order for the Counly's Deed of Trust to be senior in lien priorityto o any mechanics
liens in connection with any start of construction that:has occurred.prior to the recordation of the
Deed of:Tnist.:against:the'Property in'the'Office of the Recorder of the County of Contra Costa.
(c) The Deed of Trust and the Regulatory Agreement have been recorded against the
Property.
5
863\66\455484.3
(f) Borrower 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 Loan, together with
other funds.or firm commitments for funds that the Borrower has obtained in connection with the
Development, are not less than the amount that the County determines is necessary to pay for
construction 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
construction 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 Borrower has entered or proposed to enter for construction 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) Borrower has closed all Approved Financing described in Section 1.1(c)(i), (ii),
(iv) and (vi) and is eligible to receive the proceeds thereof.
(1) The County has received a written draw request from the Borrower, 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 Borrower'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.
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 Borrower certifying that
each Tenant occupying a MHSA Unit 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 the MHSA Units.
(b) The County has received a cost certification for the Development from the
Borrower showing all uses and sources.
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(c) The County has received from the Borrower copies of the final certificate of
occupancy for the Development, or other equivalent document evidencing completion of the
construction.
(d). The County has received for the Borrower current evidence of the insurance
coverage meeting the requirements of Section 4.13 below.
(e) The County has received from Borrower a form of lease, Marketing Plan and
Social Service Plan for the Development.
(f) The County has received from Borrower evidence of marketing for any vacant
MHSA Units in the Development such as copies of flyers, list of media ads, list of agencies and
organizations receiving information on availability of such units, as applicable.
(g) The County has received from Borrower all relevant contract activity information.
(h) The County has received from Borrower contact information for the property
manager of the Development and the.name and.phone number of the on-site property manager.
(i) If the Borrower was required to pay prevailing wages under the Davis Bacon Act
(40 USC 3141-3148), the County has received from Borrower all certified payrolls, and any
identified payment issues have been resolved, or the Borrower is working diligently to resolve
any such issues.
(j) The County has received a written draw request from the Borrower, 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. Borrower
shall apply the disbursement for the purpose(s) requested.
Section 2.7 Repayment Schedule.
(a) Term. The Loan and this Agreement shall have a term that expires on the date
fifty-five (55) years after the date of this Agreement (the "Term").
(b) Deferred Payment. Repayment of outstanding principal and accrued interest of
the Loan shall be deferred for the Term of the Loan, except as provided in Subsection (c) below.
(c) Payment in Full. All principal and accrued interest on the Loan shall be due in
full on the earliest to occur of(i) the date of any Transfer not authorized by the County, (ii) the
date of any Default, or(iii) the expiration of the Term.
(d) Prepayment. The Borrower shall have the right to prepay the Loan at any time
without penalty. However, the Regulatory Agreement and the Deed of Trust shall remain in
effect for the entire term of the Regulatory Agreement, regardless of any prepayment.
Section 2.8 Non-Recourse.
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Except as provided below, neither the Borrower, nor any general or limited partner of the
Borrower,`shall have any direct or indirect personal liability for payment of the principal of, and
interest on, the Loan or the performance of the covenants of the Borrower under the Deed of
Trust. Following recordation of the.Deed of Trust, the sole recourse of the County with respect
to the principal of, and interest on,the Note and defaults by Borrower 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 Note 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 Note 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 principal of, and payment of interest on the Note and the performance of the Borrower's
obligations under the Deed of Trust, except as hereafter set forth; nothing contained herein is
intended to relieve the Borrower of its obligation to indemnify the County under Sections 3.7,
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 Borrower 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 CONSTRUCTION OF THE DEVELOPMENT
Section 3.1 Permits and Approvals.
The Development is currently under construction.
Section 3.2 Bid Packa4;e.
(a) The County has approved Borrower's Bid Package. The Bid Package includes,
but is not be limited to, (i) a copy of the proposed construction contract, (ii) a copy of the
proposed invitation to bid, (iii) other procurement documentation reasonably requested by the
County, and (iv) all Construction Plans for the Development. As used in this Agreement,
"Construction Plans" shall mean all documentation upon which Borrower and Borrower's
contractor, if any, shall rely in constructing 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").
Section 3.3 Construction Contract.
(a) The County has approved the construction contract for the Development. The
construction contract provides that at least ten percent(10%) of the costs incurred shall be
payable only upon completion of construction, subject to early release of retention for specified
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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.
Section 3.4 Bonds.
The Borrower represents and warrants that the Borrower has delivered to the County
copies of labor and material bonds and performance bonds for the construction of the
Development in an amount equal to one hundred percent (100%) of the scheduled cost of the
Development. Such bonds name the County as a co-obligee.
Section 3.5 Commencement of Construction.
The Development is currently under construction.
Section 3.6 Completion of Construction.
Borrower shall diligently prosecute construction of the Development to completion, and
shall cause the completion of the construction of the Development no later than December 21,
2007, or such later date that the County may approve.
Section 3.7 Construction Pursuant to Plans and Laws; Prevailing Wages; Accessibility.
(a) Borrower shall construct the Development in conformance with the Scope of
Work and the plans and specifications approved by the City of Walnut Creek Building Inspection
Department. Borrower 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 City of Walnut Creek. 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 workthe
cost of which cumulatively exceeds Fifty Thousand Dollars ($50,000) or ten percent(10%) of
the Loan 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 Walnut
Creek. Consent to any additions, changes, or deletions to the work shall not relieve or release
Borrower from any other obligations under this Agreement, or relieve or release Borrower or its
surety from any surety bond.
(b) Borrower shall cause all work performed in connection with the Development to
be performed in compliance with(i) all applicable laws, ordinances, rules and regulations of
federal, state, county or municipal governments or agencies now in force or that may be enacted
hereafter, including without limitation and to the extent applicable, the prevailing wage
provisions of the federal Davis Bacon Act and implementing rules and regulations, as further set
forth in subsection (c) below, and state prevailing wages pursuant to Labor Code Section 1770 et
se .., and the regulations pursuant thereto, as further set forth in subsection (d) below; (ii) the
property standards set out in 24 C.F.R. 5.701 et s ., and 24 C.F.R. 92.251; and (iii) all
directions, :rules and regulations of any fire marshal, health officer, building inspector, or other
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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 Borrower shall be responsible to
the County for the procurement and maintenance thereof, as may be required of Borrower and all
entities engaged in work on the Development.
(c) The Borrower shall cause construction of the Development to be in compliance
with the prevailing wage requirements of the federal Davis-Bacon Act (10 USC 3141-3148).
The Borrower 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 the
Borrower, its contractor and subcontractors) to pay prevailing wages as determined pursuant to
the prevailing wage provisions of the federal Davis-Bacon Act and implementing rules and
regulations in connection with the construction of the Project or any other work undertaken or in
connection with the Property. The requirements in this Subsection.shall survive repayment of
the Loan and the reconveyance of the Deed of Trust.
(d) The Borrower shall pay and shall cause the contractor and subcontractors to pay
prevailing wages in the construction of the Development as those wages are determined pursuant
to Labor Code Sections 1720 et s ., to employ apprentices as required by Labor Code Sections
1777.5 et sem., and the implementing regulations of the Department of Industrial Relations (the
"DIR"). The Borrower shall and shall cause the contractor and subcontractors to comply with
the other applicable provisions of Labor Code Sections 1720 et seMc., 1777.5 et sect., and
implementing regulations of the DIR. The Borrower shall and shall cause the contractor and
subcontractors to keep and retain such records as are necessary to determine if such prevailing
wages have been paid as required pursuant to Labor Code Sections 1720 et SeMc., and apprentices
have been employed are required by Labor Code Sections 1777.5 et SeMc. Copies of the currently
applicable current per diem prevailing wages are available from DIR. During the construction of
the Development, Borrower shall or shall cause the contractor to post at the Property the
applicable prevailing rates of per diem wages. The Borrower shall indemnify, hold harmless and
defend (with counsel reasonably acceptable to the County) the County against any claim for
damages, compensation, fines,penalties or other amounts arising out of the failure or alleged
failure of any person or entity(including Borrower, its contractor and subcontractors) to pay
prevailing wages as determined pursuant to Labor Code Sections 1720 et se ., to employ
apprentices pursuant to Labor Code Sections 1777.5 et sM., and implementing regulations of the
DIR or to comply with the other applicable provisions of Labor Code Sections 1720 et sem.,
1777.5 et seg., and the implementing regulations of the DIR in connection with the construction
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 Loan, and the reconveyance of
the Deed ofTrust.
Section 3.8 Marketing Plan and Services Plan.
(a) Prior to close of escrow of the Loan, if not already submitted, Borrower 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
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shall approve or disapprove it within fifteen (15) days after submission. If the Marketing Plan is
not approved, Borrower shall submit a revised Marketing Plan within fifteen (15) days. If the
County does not approve the revised Marketing Plan, Borrower shall be in default hereunder.
(b) No later than four(4) months prior to the projected date of completion of the
construction of the Development, Borrower 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 MRSA Eligible Tenants, and the Borrower 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
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 Service
Plan, the County shall promptly review the Social Service Plan and shall approve or disapprove
it within fifteen (15) days after submission. If the Social Service Plan is not approved, Borrower
shall submit a revised Social Services Plan within fifteen (15) days. If the County does not
approve the revised Social Services Plan, Borrower shall be in default hereunder. The County
may require that the Social Service Plan be updated by Borrower 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 Borrower
in writing and Borrower 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 Borrower's initial submission of the Social Service Plan.
Section 3.9 Equal Opportunity.
During the construction 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
construction work.
Section 3.10 Minority and Women-Owned Contractors.
Borrower will use its best efforts to afford minority-owned and women-owned business
enterprises the maximum practicable opportunity to participate in the construction of the
Development. Borrower shall, at a minimum, notify applicable minority-owned and women-
owned business firms located in Contra Costa County of bid opportunities for the construction of
the Development. Documentation of such notifications shall be maintained by Borrower and
available to the County as requested.
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Section 3.11 Progress Reports.
Until such time as Borrower has received a certificate of occupancy from the County for
the Development, Borrower shall provide the County with quarterly progress reports regarding
the status of the construction of the Development, including a certification that the actual
construction costs to date conform to the Approved Development Budget, as it may be amended
from time to time pursuant to Section 3.15 below.
Section 3.12 Construction Responsibilities.
(a) It shall be the responsibility of Borrower to coordinate and schedule the work to
be performed so that commencement and completion of the construction will take place in
accordance with this Agreement.
(b) Borrower shall be solely responsible for all aspects of Borrower's conduct in
connection with the Development, including (but not limited to) the quality and suitability of the
plans and specifications, the supervision of construction 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 Borrower is
properly discharging its obligations to the County, and should not be relied upon by Borrower or
by any third parties as a warranty or representation by the County as to the quality of the design
or construction 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 Loan
is served on the County or any other lender or other third party in connection with the
Development, then Borrower 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 Borrower 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
Borrower's expense. Alternately, the County may require Borrower 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 Borrower.
(c) Borrower shall file a valid notice of cessation or notice of completion upon
cessation of construction 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.
Borrower authorizes the County, but without any obligation, to record any notices of completion
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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.
Borrower 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. Borrower shall submit any required amendments to the Approved Development Budget
to the County for approval within five (5) days of the date Borrower receives information
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 Developer Fee.
The maximum cumulative developer fee that may be paid to any entity or entities
providing development services to the Development, whether paid up-front or on a deferred
basis, shall not exceed Two Million One Hundred Four Thousand One Hundred Fifteen Dollars
($2,104,115), of which all but Nine Hundred Forty Thousand Dollars ($940,000) shall be
reinvested in the Development as General Partner Equity. Partnership management fees for the
Development shall not exceed Twenty-Five Thousand Dollars ($25,000) per year and shall be
paid only during the fifteen (15) year tax credit compliance period.
Section 3.17 Capital Contributions.
The Borrower shall cause its general partner and limited partner to make the capital
contributions described in subsection 1.1(c) (viii) and (ix) above, and shall utilize such funds to
pay costs of the Development, consistent with the Approved Development Budget.
Section 3.18 Operating Deficit Reserve.
At completion of construction the Borrower shall fund an operating deficit reserve with
no less than Five Hundred Thirteen Thousand Four Hundred Three Dollars ($513,403).
ARTICLE 4 LOAN REQUIREMENTS
Section 4.1 Financial Accountings and Post-Completion Audits.
No later than sixty(60) days following completion of construction of the Development,
Borrower 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 construction
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of the Development, Borrower 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, Borrower 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, Borrower
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.
Section 4.3 Information.
Borrower shall provide any information reasonably requested by the County in
connection with.the Development, including (but not limited to) any information required by
DM.H in connection with Borrower's use of the Loan funds.
Section 4.4 Records.
(a) The Borrower shall keep and maintain at the Development, or elsewhere with the
County's written consent, full, complete and appropriate books, record and accounts relating to
the Development, including all such books, records and accounts necessary or prudent to
evidence and substantiate in full detail Borrower's compliance with the terms and provisions of
this Agreement. Books, records and accounts relating to Borrower'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 Borrower 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 Borrower are kept. The Borrower 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 Loan is pending at the end of the record retention period stated herein, then the Borrower
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 Loan 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.
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(iv) Certified payrolls from the Borrower's general contractor evidencing that
applicable prevailing wages have been paid.
(v) Records documenting compliance with the Social Service Plan approved
by the County.
(b) The County shall notify Borrower of any records it deems insufficient. Borrower
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 Borrower shall begin to correct the
deficiency within fifteen(15) days and correct the deficiency as soon as reasonably possible.
Section 4.5 Audits.
Each year, Borrower shall provide the County with a copy of Borrower's annual audit,
which shall include information on all of Borrower'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 Borrower's books, records, and accounts pertaining thereto.
Such audit shall be conducted during normal business hours at the principal place of business of
Borrower 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 Borrower.
Section 4.6 Hazardous Materials.
(a) Borrower 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. Borrower 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 of projects like the Development or kept and used in and about
residential property of this type.
(b) Borrower shall immediately advise the County in writing if at any time it receives
written notice of(i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against Borrower 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 Borrower 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) Borrower'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
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of California Health and Safety Code, Sections 25220 et sem., 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 Borrower. Borrower
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,
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, Borrower 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 Borrower shall notify the County as soon as practicable of
any action so taken. The County agrees not to withhold its consent, where such consent is
required hereunder, if(i) a particular remedial action is ordered by a court of competent
jurisdiction, (ii) Borrower will or may be subjected to civil or criminal sanctions or penalties if it
fails to take a required action; (iii) Borrower 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) Borrower hereby acknowledges and agrees that(i) this Section is intended as the
County's written request for information (and Borrower's response) concerning the
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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 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 Borrower 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 Borrower 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 Borrower 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 construction and operation of the Development,
Borrower 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
Borrower 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 Borrower, if any improvement now or
in the future on the Property is damaged or destroyed, then Borrower 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)
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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 Borrower shall make up the deficiency. If Borrower does not
promptly make such repairs then any insurance proceeds collected for such damage or
destruction shall be promptly delivered by the Borrower to the County as a special repayment of
the Loan, subject to the rights of the Senior Lenders, if any.
Section 4.8 Fees and Taxes.
Borrower 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
Development to the extent owned by Borrower, and shall pay such charges prior to delinquency.
However, Borrower 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, Borrower 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 Litigation.
Borrower shall promptly notify the County in writing of any litigation which has the
potential to materially affect Borrower 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 construction, Borrower shall operate the
Development as permanently affordable housing, including utilizing the MHSA Units for MHSA
Eligible Tenants consistent with (i) DMH's requirements for use of the MHSA Funds, and (ii) the
Regulatory Agreement.
(b) Before leasing any MHSA Unit, Borrower shall use a form of lease agreement
approved by the County.
(c) In marketing the MHSA Units, Borrower shall comply with the procedures set.
forth in the Marketing Plan approved by the County.
(d) Borrower represents and.warrants that Borrower has determined the income
eligibility of each existing Tenant household in the Development pursuant to certification
procedures which have been approved by the County. Borrower must determine the income
eligibility of each new Tenant in the Development pursuant to the County's approved tenant
certification procedures within sixty(60) days before the Tenant's expected occupancy of one of
the MHSA Units. The Borrower shall certify each Tenant's income on an annual basis.
(e) The maximum household income of a Tenant in the MHSA Units, and the total
charges for rent, utilities, and related services to each Tenant, shall be maintained as provided in
the Regulatory Agreement.
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(f) Throughout the term of this Agreement, Borrower shall ensure that social services
are provided in accordance with the Social Service Plan approved by the County. Each year,
Borrower shall obtain a certification regarding a Tenant's MHSA Eligibility in accordance with
Section 3.1(b) of the Regulatory Agreement.
Section 4.1.1 Nondiscrimination.
(a) The Borrower 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 enjoyment of the
Property, nor shall the Borrower or any person claiming under or through the Borrower 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 Borrower from requiring tenant
households for all three (3) MHSA 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 interestevidenced by a land contract by which possession of the Development is
transferred and Borrower 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 Loan 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 County Home Loan, the
County HOPWA Loan, the Ca1HFA Loan, the City Loan, the MHP Loan, and the AHP Loan.
(d) The County hereby approves the sale of the limited partnership interests in the
Borrower, provided that: (i) the amended partnership agreement of Borrower provides for capital
contributions of the general and limited partners in the minimum amounts shown in Section
1.1(c)(vii) and (viii) above or such increased amount as is.necessary for project feasibility; and
(ii) all documents associated with the low income housing tax credit syndication of the
Development are submitted to the County for approval prior to execution, which approval shall
not be unreasonably withheld. In the event the general partner of the Borrower is removed by
the limited partner of Borrower for cause following default under the Borrower's partnership
agreement, the County hereby approves the transfer of the general partner interest to a limited
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liability company or a 501(c)(3)tax-exempt nonprofit corporation that is selected by the limited
partner and approved in advance and in writing by the County, which approval shall not be
unreasonably withheld.
Section 4.1.3 Insurance Requirements.
The Borrower shall maintain the following insurance coverage throughout the Term of
the Loan:
(a) Worker's Compensation insurance to the extent required by law, including
Employcr'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 construction, and upon completion of
construction, property insurance covering the Development, in form appropriate 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 Loan
proceeds caused by dishonesty, in an amount not less than Seven Hundred Thousand Dollars
($700,000) naming the County a Loss Payee, as its interests may appear. .
(f) The Borrower shall cause any general contractor, agent, or subcontractor working
on the Development under direct contract with the Borrower or subcontract to maintain
insurance of the types and in at least the minimum amounts described in subsections (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 Borrower
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
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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 Borrower 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 BORROWER
Section 5.1 Representations and Warranties.
Borrower hereby represents and warrants to the County as follows:
(a) Organization. Borrower is a duly organized California limited partnership,
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 Borrower. Borrower 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 Loan Documents and all other documents or instruments executed and
delivered, or to.be executed and delivered, pursuant to this Agreement, and to perform and
observe the terms and provisions of all of the above.
(c) Authority of Persons Executing Documents. This Agreement and the Loan
Documents and all other documents or instruments executed and delivered, or to be executed and
delivered, pursuant to this Agreement have been executed and delivered by persons who are duly
authorized to execute and deliver the same for and on behalf of Borrower, and all actions
required under Borrower's organizational documents and applicable governing law for the.
authorization, execution, delivery and performance of this Agreement and the Loan Documents
and all other documents or instruments executed and delivered, or to be executed and delivered,
pursuant to this Agreement, have been duly taken.
(d) Valid Binding Agreements. This Agreement and the Loan Documents and all
other documents.or instruments which have been executed and delivered pursuant to or in
connection with this Agreement constitute or, if not yet executed or delivered, will when so
executed and delivered constitute, legal, valid and binding obligations of Borrower enforceable
against it in accordance with their respective terms.
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(e) No Breach of Law or Agreement. Neither the execution nor delivery of this
Agreement and the Loan Documents or of any other documents or instruments executed and
delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any
provision, condition, covenant or other term hereof or thereof, will conflict with or result in a
breach of any statute, rule or regulation, or any judgment, decree or order of any court, board,
commission or agency whatsoever binding on Borrower, or any provision of the organizational
documents of Borrower, or will conflict with or constitute a breach of or a default under any
agreement to which Borrower is a party, or will result in the creation or imposition of any lien
upon any assets or property of Borrower, other than liens established pursuant hereto.
(f) Compliance With Laws, Consents and Approvals. The construction 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. Borrower 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 Borrower,threatened against or
affecting Borrower or the Development, at law or in equity, before or by any court, board,
commission or agency whatsoever which might, if determined adversely to Borrower, materially
affect Borrower's ability to.repay the Loan or impair the security to be given to the County
pursuant hereto.
(h) Title to Land. At the time of recordation of the Deed of Trust, Borrower will have
good and marketable fee title to the Development and there will exist thereon or with 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 Borrower and other financial
data and information furnished by Borrower 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 Borrower from that shown by such financial
statements and other data and information.
(j) Sufficient Funds. Borrower holds sufficient funds and/or binding commitments
for sufficient funds to complete the acquisition of the Property and the construction of the
Development in accordance with the plans and specifications approved by the County.
(k) Taxes. Borrower and its subsidiaries have filed all federal and other material tax
returns and reports required to be filed, and have paid all federal and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their 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
Borrower or any of its subsidiaries that could, if made, be reasonably expected to have a material
adverse effect upon the Property, liabilities (actual or contingent), operations, condition
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(financial or otherwise) or prospects of the Borrower and its subsidiaries, taken as a whole,
which would be expected to result in a material impairment of the ability of Borrower to perform
under any Loan Document to which it is a party, or a material adverse effect upon the legality,
validity, binding effect or enforceability against Borrower of any Loan Document.
ARTICLE 6 DEFAULT AND REMEDIES
Section 6.1 Events of Default.
Each of the following shall constitute a "Default" by Borrower under this Agreement:
(a) Failure to Construct. Failure of Borrower to commence and complete
construction of the Development within.the times set forth in Article 3 above.
(b) Failure to Make Pam. Failure to repay the principal and any interest on the
Loan within ten (10) days of receipt of written notice from the County that such payment is due
pursuant to the Loan Documents.
(c) Breach of Covenants. Failure by Borrower to duly perform, comply with, or
observe any of the conditions, terms, or covenants of any of the Loan Documents, and such
failure having continued uncured for thirty(30) days after receipt of written notice thereof from
the County to the Borrower or, if the breach cannot be cured within thirty(30) days, the
Borrower shall not be in breach so long as Borrower is diligently undertaking to cure such breach
and such 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.
(d) Default Under Other Loans. A default is declared under any other financing for
the Development by the lender of such financing.
(e) Insolvency. A court having jurisdiction shall have made or entered any decree or
order(i) adjudging Borrower or Borrower's general partner, to be bankrupt or insolvent, (ii)
approving as properly filed a petition seeking reorganization of Borrower or Borrower's general
partner, or seeking any arrangement for Borrower or Borrower's general partner, 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 Borrower
or Borrower's general partner in bankruptcy or insolvency or for any of their properties, (iv)
directing the winding up or liquidation of Borrower or Borrower's general partner, 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) Borrower or Borrower's general
partner,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 the Note.
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(f) Assignment; Attachment. Borrower or Borrower's general partner, 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 the
Note.
(g) Suspension; Termination. Borrower or Borrower's general partner, shall have
voluntarily suspended its business or the partnership shall have been dissolved or terminated,
other than a technical termination of the partnership for tax purposes commenced termination or
dissolution..
(h) 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 Loan 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.
(i) . Condemnation. The condemnation, seizure, or appropriation of all or the
substantial part of the Property and the Development.
(j) Unauthorized Transfer. Any Transfer other than as permitted by Section 4.12.
(k) Representation or Warranty Incorrect. Any Borrower 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 Loan Documents, proving to have 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 Borrower is a limited liability company, then the occurrence of any
of the events set forth in subsections (e), (f), or(g)by the Borrower's managing member, as
applicable, shall also constitute a Default under this Agreement.
Notwithstanding anything to the contrary contained herein, the County hereby agrees that
any cure of any default made or tendered by one or more of Borrower's limited partners shall be
deemed to be a cure by Borrower and shall be accepted or rejected on the same basis as if made
or tendered by Borrower.
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 Loan and shall give the County the
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right to proceed with any and all remedies set forth in this Agreement and the Loan Documents,
including but not limited to'the following:
(a) Acceleration of Note. The.County shall have the right to cause all indebtedness
of the Borrower to the County under this Agreement and the Note, together with any accrued
interest thereon, to become immediately due and payable. The Borrower waives all right to
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 Borrower 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 Loan and the
preservation, maintenance, protection, sale, or other disposition of the security given for the
Loan.
(b) Specific Performance. The County shall have the right to mandamus or other suit,
action or proceeding at law or in equity to require Borrower to perform its obligations and
covenants under the Loan Documents or to enjoin acts on things which may be unlawful or in
violation of the provisions of the Loan Documents.
(c) Right to Cure at Borrower's .Expense. The County shall have the right(but not the
obligation) to cure any monetary default by Borrower under a loan other than the Loan. The
Borrower agrees to reimburse the County for any funds advanced by the County to cure a
monetary default by Borrower upon demand therefor, together with interest thereon at the lesser
of the maximum rate permitted by law and ten percent (10%)per annum (the "Default Rate")
from the date of expenditure until the date of reimbursement.
Section 6.3 Right of Contest.
Borrower 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.
Section 6.4 Remedies Cumulative.
No right, power, or remedy given to the County by the terms of this Agreement or the
Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and
every such right, power, or remedy 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 Borrower 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.
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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 Borrower or
its agents, employees or contractors, and Borrower 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. Borrower 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
construction and operation of the Development, Borrower 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. Borrower 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 Borrower may have employed or with whom Borrower 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 construction or
operation of the Development, and Borrower shall include similar requirements in any contracts
entered into for the construction or operation of the Development.
Section 7.3 Amendments.
No alteration or 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 Loan Documents or amended and restated Loan
Documents as long as any material change in the amount or terms of the Loan is approved by the
County Board of Supervisors, or in the event the amounts or terms of financing provided by
other parties for the Development is revised, requiring conforming amendments to the County
Loan documents.
Section 7.4 Indemnification.
The Borrower shall indemnify, defend and hold the County harmless against any and all
claims, suits, actions, losses and 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 riot limited to the purchase of the Property, development, construction,
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.
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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
Borrower in the event of any default or breach by the County or for any amount which may
become due to Borrower 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, except that the investor
limited partner of the Borrower shall be a third party beneficiary with respect to notice and cure
rights granted the limited partner in 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 construction 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. Borrower 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.
(c) In accordance with Government Code Section 1090 and the Political Reform Act,
Government Code section 87100 et sem., no person who is a director, officer, partner, trustee or
employee or consultant of the Borrower, or immediate family member of any of the preceding,
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 Borrower.
Interpretation of this section shall be governed by the definitions and provisions used in the
Political Reform Act, Government Code section 87100 et seq.; its implementing regulations
manual and codes, and Government Code section 1090.
Section 7.9 Notices, Demands and Communications.
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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, CA 94553
Attention: Deputy Director - Redevelopment
Borrower:
Villa Vasconcellos L.P
2730 Telegraph Avenue.
Berkeley, CA 94705
Attn: Executive Director
With a copy to:
Union Bank of California, N.A.
200 Pringle Avenue, Suite 200
Walnut Creek, CA 94596
Attn: Asset Management
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 Law.
This Agreement shall be governed by and construed in accordance with California law.
Section 7.11 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 Borrower and its successors and assigns in the Property and the Development for the
entire Term, and the benefit hereof shall inure to the benefit of the County and its successors and
assigns.
Section 7.12 .Attorney, sem.
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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, fires, 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 (10) 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 CountyApproval.
Whenever this Agreement calls for County approval or consent, of a submission or
proposed action of Borrower, 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 Loan and the
existence of Borrower defaults under the Loan 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 Borrower 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 Borrower or to pursue any remedy allowed under this Agreement or
applicable law. Any extension of time granted to Borrower to perform any obligation under this
Agreement 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 Borrower 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 fiiture waivers.
Section 7.17 Title of Parts and Sections.
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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 Understandiny,of the Parties.
This Agreement constitutes the entire understanding and agreement of the Parties with
respect to the Loan.
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
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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
Approved as to form:
Silvano B. Marchesi BORROWER: .
County Counsel
VILLA VASCONCELLOS., a California limited
partnership
By:
Eric. S. Gelston
Deputy County Counsel By: Resources for Community Development
a California nonprofit public benefit
corporation, its general partner
By:
Daniel Sawislak
Executive Director
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863\66\459484.3
a •
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:
863\66\459484.3 A-1
s �
EXHIBIT B
Approved Development Budget
863\66\459484.3 B-1
+ C
EXHIBIT C
Scope of Work
963\66\459484.3 C-1
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
(Villa Vasconcellos - MHSA Loan)
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement")
is made and entered into as of July,, 2007, by and between the County of Contra Costa, a
political subdivision of the State of California ("County."), and Villa Vasconcellos, L.P., a
California limited partnership (the "Borrower").
RECITALS
1. . Pursuant to the Loan Agreement (as defined in Section 1.1) the County will "
provide to Borrower a loan of Seven Hundred Thousand Dollars ($700,000) in Proposition 63
(2004) Mental Health Services Act ("MHSA" or the "Act") funds to construct a seventy(70).unit
senior residential building , three units of which will be assisted by the County pursuant to this
Agreement (the "Development") on the parcel at 1515 Geary Road, Walnut Creek, Contra Costa
County, as more particularly described in Exhibit A.attached hereto (the "Property"). Capitalized
terms used but not defined in this Agreement shall have the meanings set forth in the Loan
Agreement.
2. The County Loan is funded with "one-time funds" funds from the California
Department of Mental Health ("DMH"), pursuant to the MHSA ("MHSA Funds"). The MHSA
Funds must be used by the County in accordance with the MHSA and California Code of
Regulations Title 9, Section 3100, et sem.
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 three (3) units in
the Development are reserved 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
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1 �
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, Section 3100, et se
4. The County.has agreed to make the County Loan'to the Borrower 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 Loan Agreement.
5: In consideration of receipt of the County Loan at an interest rate substantially
below the market rate, the Borrower 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 Borrower wish to enter
into this Agreement.
THEREFORE, the County and the Borrower 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 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 ofRegulations.
(c) "Agreement" shall mean this Regulatory Agreement and Declaration of
Restrictive Covenants.
(d) "Assumed Household Size" shall mean the following: (i) one person for a
studio unit; (ii) two persons for a one-bedroom unit; (iii) three persons for a two-bedroom unit;
and (iv) four persons for a three-bedroom unit.
(e) "Completion Date" shall mean the date of issuance by County of a
certificate of occupancy for the Development.
(f) "County Deed of Trust" shall mean the deed of trust dated of even date
with this Agreement among the Borrower, as trustor,North American Title Company, as trustee,
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and the County, as beneficiary, on the Property which secures repayment of the County Loan and
the performance of the Loan Agreement and this Agreement.
(g) "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.
(h) "County Loan" shall mean all funds loaned to Borrower by the County
pursuant to the Loan Agreement.
(i) "County Note" shall mean the promissory note from the Borrower to the
County dated of even date with this Agreement, evidencing all or any part of the County Loan.
(j) "Development" shall have the meaning set forth in Section 1 of the
Recitals.
(k) "DMH" shall mean the California Department of Mental Health.
(1) "HCD" shall mean the California Department of Housing and Community
Development._
(m) "Loan Agreement" shall mean the MHSA Loan Agreement entered into by
and between the County and the Borrower, dated of even date with this Agreement.
(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 HCD. 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 Borrower with other income determinations which are
reasonably similar with respect to methods of calculation to those previously published by HCD.
(o) "MRSA" or the."Act" shall have the meaning set forth in Section 1 of the
Recitals.
(p) "MHSA Eligible" shall mean a person certified by the County or the
County Designee as having a serious mental disorder as defined in Welfare and Institutions Code
Section 5600.3(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.houschold are MHSA Eligible.
(q) "MHSA Rent" shall mean the maximum allowable rent for a MHSA Unit
pursuant to Section 2.2(a)below.
(r) "MHSA Units" shall mean the three (3)Units designated as assisted by the
County for MHSA Eligible Tenants.
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863\66\459483.2
(s) "Property" shall mean the real property described in Exhibit A attached
hereto and incorporated herein.
(t) "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 Borrower 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 Borrower, and paid by the Tenant.
(u) "Social Service Plan" shall mean the Social Services Plan prepared by
Borrower and approved by County pursuant to Section 3.8 of the Loan Agreement.
(v) "Tenant" shall mean the household legally occupying a MHSA Unit.
(w) "Term" shall mean the term of this Agreement, which shall commence on
the date.of this Agreement and shall continue for twenty(20) years, subject to extension as
provided in Section 2.7(a) of the Loan Agreement.
(x) "Underserved" shall have the meaning set forth in California Code of
Regulations Title 9, Section 3200.300 or any successor regulation thereto. In the event that DMH
no longer publishes the definition of Underserved, the County shall provide the Borrower with a
definition of Underserved which is reasonably similar to the DMH definition in effect as of the
date of this.Agreement.
(y) "Unit(s)" shall mean one (1) or more of the units in the Development,
including the MHSA Units.
(z) "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 Borrower with a definition of Unserved
which is reasonably similar to the DMH definition in effect as of the date of this Agreement.
(aa) "Very Low Income Tenant" shall mean a Tenant with an Adjusted Income
which does not exceed the maximum income for a very low income households, adjusted for
Actual Household Size, as published by HCD.
4
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ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
(a) All of the MHSA 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.
(b) The MHSA Units shall be intermingled throughout the Development and
of comparable quality to all other units on the Property. Tenants in all Units shall have equal
access to and enjoyment of all common facilities in the Development. All three (3)'MHSA Units
shall be one bedroom units.
2.2 Allowable Rent
(a) MHSA Rent. Subject to the provisions of Section 2.3 below, the Rent
paid by Tenants of the MHSA Units shall not exceed the lesser of(i) one-twelfth (1/]2`h) of
thirty percent(30%) of fifty percent(50%) of Median Income, adjusted for Assumed Household
Size, and (ii) 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 Borrower 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 Borrower 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 Borrower
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 MRSA Unit shall be deemed to be continuously occupied by a
Very Low-Income Tenant, who is also MHSA Eligible, until such MHSA Unit is reoccupied, at
which time the MHSA Unit shall be rented to a Very Low-Income Tenant who is also MHSA
Eligible.
2.4 MHSA Eli ig bility.
Each Tenant occupying a MHSA Unit must include at least one MHSA Eligible
household member and such member must occupy the MHSA 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 MHSA Unit by the only MHSA Eligible household member(including by reason of the
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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.
ARTICLE 3
MHSA AND INCOME CERTIFICATION AND REPORTING
3.1 Income and MHSA Eligibility Certification.
(a) Borrower will obtain, complete and maintain on file, immediately prior to
initial occupancy and annually thereafter, income certifications from each Tenant renting any of
the MHSA Units. Borrower 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; (c) 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) Borrower will obtain, complete and maintain on file, immediately prior to
initial occupancy certification from the County Department of Health Services or a County
Designee as to whether or not the Tenant is MHSA Eligible. Annually thereafter, Borrower shall
confirm and maintain on file a certification that each MHSA Unit is occupied by a Tenant with at
least one household member who is MHSA Eligible and that such household member actually
resides in such MHSA Unit in accordance with Section 2.4 of this Agreement.
3.2 Annual Report to County.
Borrower shall submit to the County(a) not later than the forty-fifth (45`h) 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 MHSA 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.
Borrower 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 Borrower which pertain to the Development.
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3.4 .Records.
Borrower 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
any other business of Borrower 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. Borrower shall retain copies of all materials obtained or produced
with respect to occupancy of the MHSA 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. Borrower.agrees to cooperate in such inspection.
ARTICLE 4
OPERATION OF THE DEVELOPMENT
4.1 Development Use.
(a) The Development shall be operated as senior housing affordable to low
and very low income households.
(b) In the event the ongoing operating and service support funds for MHSA
Eligible Tenants identified in the Social Service Plan terminate due to no fault of Borrower, the
County and Borrower may amend the Loan Documents to permit Very-Low Income Tenants
who are not MHSA Eligible to reside in one or more of the MHSA Units.
4.2 Compliance with Loan Agreement.
Borrower shall comply with all the terms and provisions of the Loan Agreement.
4.3 Taxes and Assessments.
Borrower 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 Borrower
shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event
Borrower exercises its right to contest any tax, assessment, or charge against it, Borrower, on
final.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.
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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(g) or Section 214(h),
without the prior written consent of the County.
ARTICLE 5
PROPERTY MANAGEMENT, MAINTENANCE, AND SOCIAL SERVICES
5.1 Management Responsibilities.
The Borrower 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
Borrower 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 Borrower. 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 Borrower shall submit for County's approval the identity of any
proposed Management Agent(and County hereby pre-approves the John Stewart Company as
the initial Management Agent). The Borrower 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 Borrower 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 Borrower shall cooperate with the County in such reviews.
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5.4 Replacement of Management Arent.
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 Borrower of its
intention to cause replacement of the Management Agent, or if the Development is being self
managed, to cause the Borrower to retain a Management Agent, including the reasons therefor.
Within fifteen (15) days of receipt.by Borrower of such written notice, County staff and the
Borrower.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, Borrower 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.
Borrower 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 Borrower 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 Borrower 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 Borrower agrees to provide all necessary improvements to
assure the Development is maintained in good condition. Borrower shall make all repairs and
replacements necessary to keep the improvements in good condition and repair.
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In the event that Borrower 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 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 Borrower to the County upon demand.
5.7 Social Services. Throughout the Term, Borrower shall ensure that social services
are provided pursuant to the Social Service Plan.
ARTICLE 6
MISCELLANEOUS
6.1 Lease Provisions.
In leasing the MHSA Units, Borrower 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 Loan 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 Borrower 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 MHSA Units shall be available for occupancy on a continuous basis to
members of the general public who are MHSA Eligible and income eligible. The Borrower shall
not give preference to any particular class or group of persons in renting or selling the MHSA
Units, except to the extent that the MHSA 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 MHSA Unit nor shall Borrower or any person claiming under or through
Borrower, 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,
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subtenants, or vendees of any MHSA Unit or in connection with the employment of persons for
the construction, operation and management of any MHSA 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). Borrower agrees
to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to County)
County, and its boardmembers, officers and employees, from all suits, actions, claims,causes of
action, costs, demands,judgments and liens arising out of Borrower'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 forthe entire Term even if
the entire County Loan is paid in full prior to the end of the Term. This Agreement shall bind
any successor, heir or assign of Borrower, 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 Loan on the condition, and in consideration of, this provision, and
would not do so otherwise.
6.4 Compliance with Loan Agreement and Program Requirements.
(a) Borrower's actions with respect to the Property shall at all times be in full
conformity with: (i) all requirements of the Loan Agreement; and (ii) all requirements imposed
on projects under the Act and the DMH MHSA Regulations located at California Code of
Regulations Title 9, Section 3100, et seq.
(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 Loan Documents, upon request of the County,
the parties shall amend the terms of the Loan 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 Borrower 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. Borrower shall also file a copy
of the above-described notice with the Deputy Director- Redevelopment of the County.
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6.6 Covenants to Run With the Land.
The County and Borrower 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,
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 Borrower fails to perform any obligation under this Agreement, and fails to cure the
default within thirty(30) days after the County has notified Borrower 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 Coun, Loan. The County may declare a default under the
County Note, accelerate the indebtedness evidenced by the County Note, 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 Borrower's performance of its obligations under this
Agreement, and/or for damages.
(c) Remedies Provided Under Loan Agreement. The County may exercise
any other remedy provided under the Loan Agreement.
6.8 Attorneys Fees and Costs.
In any action brought to enforce this Agreement, the prevailing party shall be entitled to
all costs and expenses of suit, including attorneys' fees. This section shall be interpreted in
accordance with California Civil Code Section 1717 and judicial decisions interpreting that
statute.
6.9 Recording and Filing.
The County and the Borrower shall cause this Agreement, and all amendments and
supplements to it, to be recorded in the Official Records of the County of Contra Costa.
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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.
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:
Borrower: Villa Vasconcellos L.P
2730 Telegraph Avenue.
Berkeley, CA 94705
Attn: Executive Director
with a copy to: Union Bank, N.A.
200-Pringle Avenue, Suite 200
Walnut Creek, CA 94596=3570
Attn: Asset Management
County: County of Contra Costa
Community Development Department
2530 Arnold Drive, Suite 190
Martinez, CA 94553
Attn: 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.
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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.
WHEREAS, this Agreement has been entered into by the undersigned as of the date first
written above.
BORROWER:
VILLA VASCONCELLOS, L.P.,
a California limited partnership
By: Resources for Community Development,
a California nonprofit public benefit
corporation, its general partner
By:
Daniel Sawislak
Executive Director
COUNTY:
COUNTY OF CONTRA COSTA, a political subdivision
of the State of California
By:
James Kennedy
Deputy Director—Redevelopment
APPROVED AS TO FORM:
Silvano B. Marchesi
County Counsel
By:
Eric S. Gelston
Deputy County Counsel
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863\66\459483.2
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(ics), 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\66\459483.?
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\66\459483?
RECORDING REQUESTED,BY
AND WHEN RECORDED MAIL TO:
County of Contra Costa
Community Development Department
2530 Arnold Drive, Suite 190
Martinez, California 94553
Attention: Deputy Director - Redevelopment
No fee for recording pursuant to
Government (:ode Section 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND
FIXTURE FILING
(Villa Vasconcellos Apartments -MHSA)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT, AND FIXTURE FILING ("Deed of Trust") is made as of this_day of
2007, by and among the Villa Vasconcellos, L.P., a California limited partnership
("Trustor"),North American 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 casements, 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 andintended to be installed therein;
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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) Payment to Beneficiary of all sums at any time owing under or in connection with .
the Note (defined in Section 1.4 below) until paid or cancelled and any other amounts owing
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under the Loan Documents (defined in Section 13 below). Said principal and other payments
shall be due and payable as provided in the Note or other Loan Documents, as applicable. The.
Note and all its terms are incorporated herein by reference, and this conveyance 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 Loan Documents; and
(d) All modifications, extensions and renewals of any of the Secured Obligations
(including without limitation (i) modifications, extensions, or renewals at a different rate of
interest, or(ii) deferrals or accelerations of the required principal payment dates or interest
payment dates or both, in whole or in part), however evidenced, whether or not any such
modification, extdnsion or renewal is evidenced by a new or additional promissory note or notes.
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 "Loan Agreement" means that certain MHSA Loan Agreement
between Trustor and Beneficiary, of even date herewith, providing for the Beneficiary to loan to
the Trustor Seven Hundred Thousand Dollars ($700,000) for the construction of seventy(70)
apartment units and appurtenant improvements.
Section 1.2 The term "Loan Documents" means this Deed of Trust,the Note, the Loan
Agreement,the Regulatory Agreement, and any other debt, loan or security instruments between
Trustor and the Beneficiary relating to the Property.
Section 1.3 The term "Note" means the promissory note in the principal amount of
Seven Hundred Thousand Dollars ($700,000) dated of even date herewith executed by Trustor in
favor of the Beneficiary, as it may be amended or restated,the payment of which is secured by
this Deed of Trust. (A copy of the Note is on file with the Beneficiary and terms and provisions
of the Note are incorporated herein by reference.).
Section 1.4 The term "Principal" means the amount required to be paid under the
Note.
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Section 1.5 .The term "Regulatory Agreement" means the regulatory agreement of
even date herewith by and between the Beneficiary and the Trustor.
ARTICLE 2:
MAINTENANCE AND MODIFICATION OF
THE PROPERTY AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
The Trustor agrees that at all times prior to full payment and performance of the Secured
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
Loan Documents; provided, however, that Beneficiary shall exercise its rights as agent of Trustor
only in the event that Trustor shall fail to take, or shall fail to diligently continue to take, those
actions as hereinbefore provided.
Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or
claims as Beneficiary shall specify upon laborers, materialmen, subcontractors or other persons
who have furnished or claim to have furnished labor, services or materials in connection with the
Security. Nothing herein contained shall require Trustor to pay any claims for labor, materials or
services which Trustor in good faith disputes and is diligently contesting provided that Trustor
shall, within thirty(30) days after the filing of any claim of lien, record in the Office of the
Recorder of Contra Costa County, a surety bond in an amount 1 and 1/2 times the amount of
such claim item to protect against a claim of lien.
Section 2.2 Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in
the nature of easements with respect to any.property or rights included in the Security except
those required or desirable for installation and maintenance of public utilities including, without
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863\66\448228.2
limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law, and
as approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby
absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of
the Property including those now due, past due, or to become due by virtue of any lease or other
agreement for the occupancy or use of all or any part of the Property, regardless of to whom the
rents and revenues of the Property are payable. Trustor hereby authorizes Beneficiary or
Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of
the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however, that
prior to written notice given by Beneficiary to Trustor of the breach by Trustor of any covenant
or agreement of Trustor in the Loan Documents, Trustor shall collect and receive all rents and
revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the rents
and revenues so collected to the Secured 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 Loan Documents, and without the necessity of
Beneficiary entering upon and taking and maintaining full control of the Property in person, by
agent or by a court-appointed receiver, Beneficiary shall immediately be entitled to possession of
all rents and revenues of the Property as specified in this Section 2.3 as the same becomes due
and payable, including but not limited to 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 Loan Documents,
Beneficiary may in person, by agent or by a court-appointed receiver, regardless of the adequacy
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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
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 Loan
Documents shall be applied first to the costs, if any, of taking control of and managing the
Property and collecting the rents, including, but not limited to, attorney's fees, receiver's fees,
premiums on receiver's bonds, costs of repairs to the Property, premiums on insurance policies,
taxes, assessments and other charges on the Property, and the costs of discharging any obligation
or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this
deed of Trust. Beneficiary or.the receiver shall have access to the books and records used in the
operation and maintenance of the Property and shall be liable to account only for those rents
actually received. Beneficiary shall not be liable to 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 UtilityCharges.
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
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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
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
Loan Documents during the course of construction and following completion, and at all times
until all amounts secured by this Deed of Trust have been paid and all 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 Loan 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.
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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
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 S.I Other Agreements Affecting Property.
The Trustor shall duly and punctually perform all terms, covenants,.conditions and
agreements binding upon it under the Loan Documents and any other agreement of any nature
whatsoever now or hereafter involving or affecting the Security or any part thereof.
Section 5.2 Agreement to Pay Attorneys' Fees and Expenses.
In the event of any Event of Default(as defined 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
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bear interest from the date such expenses are incurred at the lesser of ten percent (10%) per
annum or the maximum rate permitted by law.
Section 5.3 . Payment of the Principal.
The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth
in the Note in the amounts and by the times set out.therein.
Section. 5.4 Personal Property.
To the maximum extent permitted by law, the personal property subject to this Deed of
Trust 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 Note in accordance with its terms. The Beneficiary is authorized to file a copy of any such
financing statement in any jurisdiction(s) as it shall deem appropriate from time to time in order
to protect the security interest established pursuant to this instrument. 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 Loan Documents.
Section 5.7 inspection of the Security.
At any and all reasonable times upon seventy-two (72)hours' notice, the Beneficiary and
its duly authorized agents,attorneys, experts, engineers, accountants and representatives, shall
have the right, without payment of charges or fees, to inspect the Security.
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.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
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
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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
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).
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
Loan Documents (together with any indemnity applicable to a breach of any such representation
and warranty) with respect to the environmental condition of the property is intended by the
Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code
of Civil Procedure Section 736.
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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
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 Loan 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 Loan Documents; (2) failure to observe or perform any of Trustor's other
covenants, agreements or obligations under the Loan Documents, including, without limitation,
the provisions concerning discrimination; or(3) failure to make any payment or 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.
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1\
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 Loan Documents), and no omission on
the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a
waiver of such right.
Section 7.3 The Beneficiary's Right to Enter and Take Possession.
If an Event of Default shall have occurred and be continuing, the Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Security and take possession thereof(or any part thereof) and of any of
the Security, in its own name or in the name of Trustee, and do any acts which it deems
necessary or desirable to preserve the value or marketability of the Property, or part thereof or
interest therein, increase the income therefrom or protect the security thereof. The entering upon
and taking possession of the Security shall not cure or waive any Event of Default or Notice of
Default(as defined 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.
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(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 the highest bidder, for cash in lawful money of the United States payable at the
time of sale: Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient
deed or deeds conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed or any matters of facts shall be conclusive proof of the
truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary,
may purchase at such sale.
(b) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds
of sale to payment of. (i)the unpaid Principal amount of the Note; (ii) all other Secured
Obligations owed to Beneficiary under the Loan Documents; (iii) all other sums then secured
hereby; and (iv) the remainder, if any, to Trustor.
(c) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new Notice of Sale.
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 apart
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.
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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'oftcn 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.
(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
Loan Documents, (iv) releases any part of the Security from the lien of this Deed of Trust, or
otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents,
(v) consents to the granting of any easement or other right affecting the Security, or(iv) makes or
consents to any agreement subordinating the lien hereof, any such act or omission shall not
release, discharge, modify, change or affect the original liability under this Deed of Trust, or any
other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or
any maker, co--signer, endorser, surety or guarantor(unless expressly released); nor shall any
such act or omission preclude the Beneficiary from exercising any right, power or privilege
herein granted or intended to be granted in any Event of Default then made or of any subsequent
Event of 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 May File Proofs of Claim.
In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting the Trustor, its creditors or its property,
the Trustee and/or the Beneficiary, to the extent permitted by law, shall be entitled to file such
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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.
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:
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Villa Vasconcellos L.P
.2730 Telegraph Avenue.
Berkeley, CA 94705
Attn: Executive Director
Any notice, demand or communication shall be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed in the manner herein specified, on the
delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either
party may change its address at any time by giving written notice of such change to Beneficiary
or Trustor as the case may be, in the manner provided herein, at,least ten (10) days prior to the
date such change is desired to be effective.
Section 8.4 Successors and Joint Trustors.
Where an obligation 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 Decd 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.
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Section 8.8 Gender and Number.
In this Deed of Trust the singular shall include the plural and the masculine shall include
the feminine and neuter and vice versa, if the context so requires.
Section 8.9 Deed of Trust, Mortgage.
Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and
any reference to a 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.
Section 8.11 Substitution of Trustee.
Beneficiary may from time to time substitute a successor or successors to any Trustee
named herein or acting hereunder to execute this Trust. Upon such appointment, and without
conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties
conferred upon any Trustee herein named or acting hereunder. Each such appointment and .
substitution shall be made by written instrument executed by Beneficiary, containing reference to
this Decd 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 Decd 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.
Section 8.14 Tax Credit Provisions.
Notwithstanding anything to the contrary contained herein or in any documents secured
by this Deed of Trust or contained in any subordination agreement, the Beneficiary
acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of foreclosure
(collectively, "Foreclosure").with respect to the Security encumbered by this Deed of Trust, the
following rule contained in Section 42(h)(6)(E)(ii) of the Internal Revenue Code of 1986 (26
USC 42 (h)(6)(E)(ii)), as amended, shall apply:
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For a period of three (3) years from the date of Foreclosure, with respect to any unit that
had been regulated by the Regulatory Agreement with the California Tax Credit Allocation
Committee, (i) none of the tenants occupying those units at the time of Foreclosure may be
evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be
increased except as otherwise permitted under Section 42 of the Code.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and
year first above written.
TRUSTOR:
VILLA VASCONCELLOS L.P., a California
limited partnership
By: Resources For Community Development,
a California nonprofit public benefit
corporation, its general partner
By:
Daniel Sawislak
Executive Director
APPROVED AS TO FORM:
Silvano B. Marchesi
County Counsel
By:
Eric. S. Gelston
Deputy County Counsel
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863\66\448228.2
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(ics), 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\66\448228.2
EXHIBIT A
Legal Description
The land is situated in the State of California, City of Walnut Creek, County of Contra Costa,
and is described as follows:
A-1
863\66•.448228.2
- 4
PROMISSORY NOTE
Vila Vasconcellos Apartments
MHSA Loan
$700,000 Martinez, California
2007
FOR VALUE RECEIVED, the undersigned Villa Vasconcellos, L.P., a California limited
partnership (the "Borrower") hereby promises to pay to the order of the County of Contra Costa,
a political subdivision of the State.of California, 2530 Arnold Drive, Suite 190, Martinez,
California 94553, (the "Holder"), a principal amount equal to Seven Hundred Thousand Dollars
($700,000), plus interest thereon pursuant to Section 2 below.
1. Borrower's Obligation; This promissory note (the "Note") evidences the
Borrower's obligation to pay the Holder the principal amount of Seven Hundred Thousand
Dollars ($700,000)of MHSA Loan Funds to assist in the construction of the Development (the
"Loan"), pursuant to the MHSA Loan Agreement between the Borrower and the Holder of even
date herewith (the "Loan Agreement"). All capitalized terms not otherwise defined in this Note .
shall have the meanings set forth in the Loan Agreement.
2. Interest.
(a) No Interest. Subject to the provisions of Section 2(b) below, the
outstanding principal balance of the Loan shall not bear interest.
(b) Default Interest. In the event of a Default, interest on the Loan shall begin.
to accrue, as of the date of Default and continuing until such time as the Loan funds are repaid in
full or the Default is cured, at the Default Rate.
3. Term and Repayment Requirements.
The tern of this Note shall commence on the date of this Note and shall expire on the
date which is fifty-five (55) years from the date of this Note. The Loan shall be payable as set
forth in Section 2.7 of the Loan Agreement.
4. No Assumption. This Note shall not be assumable by the successors and assigns
of Borrower without the prior written consent of the Holder, except as provided in Section 4.12
of the Loan Agreement.
5. Security. This Note is secured by the Deed of Trust, of even date herewith,
wherein the Borrower is the trustor and the Holder is the beneficiary, recorded against the
Property.
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6. Terms of Payment.
(a) All payments due under this Note shall be paid in currency of the United
States of America, which at the time of payment is lawful for the payment of public and private
debts. .
.(b) All payments on this Note shall be paid to Holder at Community
Development Department, 2530 Arnold Drive, Suite 190, Martinez, CA 94553, Attention:
Deputy Director- Redevelopment or to such other place as the Holder of this Note may from time
to time designate.
(c) All payments on this Note shall be without expense to the Holder, and the
Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable
attorney's fees and other professional service fees and costs of the Holder, incurred in connection
with the payment of this Note and the release of any security hereof.
(d) Notwithstanding any other provision of this Note, or any instrument
securing the obligations of the Borrower under this Note, if, for any reason whatsoever, the
payment of any sums by the Borrower pursuant to the terms of this Note would result in the
payment,of interest which would exceed the amount that the Holder may legally charge under
the laws of the State of California, then the amount by which payments exceed the lawful interest
rate shall automatically be deducted from the principal balance owing on this Note, so that in no
event shall the Borrower be obligated under the terms of this Note to pay any interest which
would exceed the lawful rate.
(e) This Note shall be nonrecourse to the Borrower, pursuant to, and except as
provided in, Section 2.8 of the Loan Agreement.
7. Default.
(a) Any of the following shall constitute an event of default under.this Note:
(i). Any failure to pay, in full, any payment required under this Note
within ten (10) days of written notice from the Holder to the Borrower that such payment is due;
(ii) Any failure in the performance by the Borrower of any term,
condition,provision or covenant set forth in this Note subject to the notice and cure period set
forth in Section 6.1(c) of the Loan Agreement;
(iii) The occurrence of any event of default under any of the Loan
Documents or other instrument securing the obligations of the Borrower under this Note or under
any other promissory notes hereafter issued by the Borrower to the Holder pursuant to the Loan
Agreement or the Deed of Trust, subject to notice and cure periods, if any, set forth therein.
(b) Upon the occurrence of one or more of the foregoing events of default, the
entire unpaid principal balance, together with all interest thereon, and together with all other
sums then payable under this Note and the Deed of Trust shall at the option of the Holder
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become immediately due and payable upon written notice by the Holder to the Borrower without
further demand.
(c) Holder's failure to exercise the remedy set forth in Subsection 7(b) above
or any other remedy provided by law upon the occurrence of one or more of the foregoing events
of default shall not constitute a waiver of the right to exercise any remedy at any subsequent time
in respect to the same or any other default. The acceptance by Holder hereof of any payment
which is less than the total of all amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the foregoing remedies or options at that time.
or at any subsequent time, or nullify any prior exercise of any such remedy or option, without the
express consent of the Holder, except as and to the extent otherwise provided by law.
8. Waivers.
(a) The Borrower hereby waives diligence, presentment, protest and demand,
and notice of protest, notice of demand, and notice of dishonor of this Note. The Borrower
expressly agrees that this Note or any payment hereunder may be extended from time to time,
and that the Holder may accept further security or release any security for this Note, all without
in any way affecting the liability of the Borrower.
(b) Any extension of time for payment of this Note or any installment hereof
made by agreement of the Holder with any person now or hereafter liable for payment of this
Note shall not operate to release, discharge, modify, change or affect the original liability of the
Borrower.under this Note, either in whole or in part.
(c) The obligations of the Borrower under this Note shall be absolute and the
Borrower waives any and all rights to offset, deduct or withhold any payments or charges due
under this Note for any reason whatsoever.
9. Miscellaneous Provisions.
(a) All notices to the Holder or the Borrower shall be given in the manner and
at the addresses set forth in the Loan Agreement, or to such addresses as the Holder and the
Borrower may therein designate.
(b) The Borrower promises to pay all costs and expenses, including .
reasonable attorney's fees and other professional service fees and costs, incurred by the Holder in
the enforcement of the provisions of this Note, regardless of whether suit is.filed to seek
enforcement.
(c) This Note may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change, modification or discharge
is sought.
(d) This Note shall be governed by and construed in accordance with the laws
of the State of California.
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(e) The times for the performance of any obligations hereunder shall be
strictly construed, time being of the essence.
(f) This document, together with the Loan Documents, contains the entire
agreement between the parties as to the Loan. It may not be modified except upon written
consent of the parties.
BORROWER:
VILLA VASCONCELL•OS L.P., a California
limited partnership
By: Resources For Community Development,
a California nonprofit public benefit
corporation, its general partner
By:
Daniel Sawislak
Executive Director
APPROVED AS TO FORM:
Silvano B. Marchesi, County Counsel
By:
Eric S. Gelston
Deputy County Counsel
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