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4 (1) all rents, fees and charges paid by tenants, payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income;
(2) The proceeds of business interruption or similar
insurance;
(3) Any payment received in consideration for the
leasing or other use of any portion of the Project;
(4) Subject to the rights of other lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Project (or applied toward the cost of recovering such proceeds);
(5) Subject to the rights of other lenders, condemnation awards for a taking of part or all of the Project for a temporary period; and all rents, fees and charges paid by tenants;
(iv) "Residual Receipts" shall mean in a particular calendar year the amount by which Gross Revenue exceeds Annual Operating Expenses.
4. No Assumption. This Note is not assumable by the successors and assigns of Borrower without the prior written consent of Holder. Any Permitted Transferee under the Ground Lease shall be entitled to assume the Borrower's obligations hereunder.
5. Security. This Note is secured by that certain Leasehold Deed of Trust with Assignment of Rents, Security Agreement, and Fixture Filing (the "Deed of Trust") wherein the Borrower is the Trustor and the Holder is the Beneficiary.
6. Terms of Payment.
(a) All payments due under this Note must 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 must be paid to Holder at the Community Development Department, 1333 Park Avenue, Emeryville, CA 94608-3517, Attention: Community Development Director, or to such other place as the Holder of this Note may from time to time designate.
(c) All payments on this Note must 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.
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5 (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) The Loan shall be nonrecourse. Borrower shall not have any personal liability for payment of the principal of, and interest on, the Loan. The sole recourse of the Holder with respect to the principal of, or interest on, the Note will be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability limits or impairs the enforcement of all the rights and remedies of the Holder against all such security for the Note, or impairs the right of Holder to assert the unpaid principal amount of the Note as demand for money within the meaning and intent 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 to repay the principal and interest on the Note. Except as hereafter set forth; nothing contained herein is intended to relieve Borrower of its liability for (i) loss or damage of any kind resulting from waste, 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 Developer 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.
7. Default.
(a) The entire unpaid principal balance, together with all interest thereon, and together with all other sums payable under this Note, shall at the option of the Holder become immediately due and payable without further demand, upon occurrence of:
(i) Any failure of Borrower to pay, in full, any payment required under this Note within ten (10) days after receipt of notice from Holder 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 within ten (10) days after receipt of notice from Holder of any failure to perform;
(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 Deed of Trust, subject to notice and cure periods, if any, set forth therein.
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6 (b) The Holder's failure to exercise the remedy set forth in Subsection 7(a) above or any other remedy provided by law upon the occurrence of one or more of the foregoing events of default described in subsections (i) through (iii) above, will 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 the Holder hereof of any payment which is less than the total of all amounts due and payable at the time of such payment will 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, notice of dishonor and notice of non-payment 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) No extension of time for payment of this Note or any installment hereof made by agreement of Holder with any person now or hereafter liable for payment of this Note will operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in whole or in part.
(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) Except as otherwise specified herein, all notices to be sent pursuant to this Note shall be made in writing, and sent to the Borrower or Holder’s address specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (A) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (B) a transmission report is DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 1828\01\3653230.2
7 generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day.
Holder: City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Manager
Phone: (510) 596-4370
Facsimile: (510) 596-3724
And
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Attorney
Phone: (510) 596-4380
Facsimile: (510) 596-3724
Borrower: _____________________, L.P.
c/o EAH Inc.
22 Pelican Way
San Rafael, CA 94901
Attention: President
Telephone: (415) 295-8854
With Copies to:
Klein Hornig LLP
1325 G Street NW, Suite 770
Washington, DC 20005
Attn: Jed D'Abravanel
Telephone: (202) 926-3163
Facsimile: (202) 926-3401
(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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8 (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.
[Remainder of page intentionally blank.]
[Signature on following page.]
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Signature Page
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S-1
IN WITNESS WHEREOF, Borrower has executed this Note as of the day and year first above written.
BORROWER:
_______________________, a California limited partnership By: ____________________, a California limited
liability company,
its sole and managing general partner
By: EAH INC.,
a California nonprofit public benefit corporation,
its managing and sole member
By: _______________________________
Name: ____________________________
Its: _______________________________
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EXHIBIT J
LICENSE AGREEMENT
J-1
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LICENSE AGREEMENT
This License Agreement ("Agreement") is made as of _______, 202_ ("Effective Date"), by and between the City of Emeryville, a California municipal corporation ("Licensor"), and ___________, L.P., a California limited partnership, or an affiliate thereof ("Licensee").
Licensor and Licensee may be collectively referred to herein as the "Parties" and individually as a "Party." Licensor and Licensee enter into this Agreement with reference to the following facts:
A. Licensor is the owner of certain real property located in the City of Emeryville, County of Alameda, State of California, more fully described in Exhibit A attached hereto ("Licensor Property").
B. Licensee or its affiliate is the lessee pursuant to that certain ground lease between Licensee and Licensor (“Ground Lease”) of that certain real property located in the City of Emeryville, County of Alameda, State of California, more fully described in Exhibit B attached hereto (“Licensee Property”). The Licensee Property is adjacent to the Licensor Property.
C. Licensor and EAH, Inc., a California nonprofit public benefit corporation (“EAH”) are parties to that certain Lease Disposition and Development Agreement dated as of ________, 2024 (“LDDA”) whereby EAH agreed to develop an affordable housing development consisting of no fewer than 362 affordable residential units in three phases (the “Development”) all as set forth in the LDDA. Licensee is an affiliate of EAH.
D. The LDDA contemplates that Licensee will construct certain infrastructure improvements, including but not limited to improvements to expand Christie Park as well as other improvements that will serve the Development.
E. Licensee desires for Licensor to grant to Licensee, and its employees, contractors (including the general contractor), subcontractors, representatives, and agents (collectively, the "Licensee Parties"), a temporary license to enter onto the Licensor Property for construction of the Christie Park expansion consistent with the terms of the Project Improvement Agreement entered into by and between Licensor and Licensee concurrently with this Agreement and the demolition of certain improvements located on ______ Christie Street, and the installation of certain infrastructure improvements on _____ Christie Street all as more specifically set forth in Exhibit C (the “Work”).
THEREFORE, for valuable consideration, the receipt of which is acknowledged, the Parties hereby agree as follows:
1. Recitals. The above recitals are incorporated herein by reference.
2. License. As of the Effective Date, Licensor hereby grants to Licensee a nonexclusive temporary license and permission to enter upon the Licensor Property ("License") to construct the Christie Park expansion and to complete the Work on the Licensee's property; DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 2 1828\01\3666630.1
provided, that Licensee Parties' use of the Licensor Property shall not interfere unreasonably with the reasonable use and ownership of the Licensor Property by Licensor or any persons claiming through or under Licensor. No use of the Licensor's Property for any other purpose is permitted.
3. Term. The term of this Agreement and the License shall commence on the Effective Date and shall, unless sooner terminated upon mutual agreement by the Parties, continue until the earlier of (i) the date that Licensee provides written notice to Licensor that the Licensee has completed the Work; (ii) the date that Licensee or an affiliate of EAH enters into a ground lease for the Licensor Property or (iii) the date, that Licensor has given Licensee at least three (3) months written notice, upon which Licensee Parties must vacate the Licensor Property (the "Term").
4. Damage to Licensor Property. During the Term of this Agreement Licensee Parties shall cause the Licensor's Property to be in a safe, secure and sanitary condition, to the reasonable satisfaction of the Licensor. Upon the expiration or earlier termination of this Agreement, Licensee shall promptly remove any or all equipment, materials, or any other personal property brought to the Licensor's Property by or on behalf of the Licensee without any compensation from Licensor.
Licensee expressly acknowledges that it shall be solely responsible for the repair and renovation of any improvements on the Licensor's Property which are damaged or destroyed in connection with performing the Work and that it shall be solely responsible for any damage done to the Licensor Property by Licensee or Licensee Parties.
5. Construction of Improvements; Work. The Work shall be completed by Licensee at its sole cost and expense.
6. No Other Improvements. Except as permitted in Section 2, no signs, structures, advertising devices, trailers, buildings, improvements or appurtenances of any kind ("Other Improvements") shall be constructed or placed on the Licensor Property by Licensee or Licensee Parties, without the express prior written approval of Licensor.
7. Compliance with Law; Conduct of the Licensee. While on the Licensor Property, Licensee and Licensee Parties will comply with all applicable laws, rules, regulations, codes, statutes and conditions ("Applicable Law"). Licensee shall obtain all approvals and permits required for the Work prior to commencement of the Work. All activities conducted on the Licensor Property by the Licensee and Licensee Parties shall be done in a safe, professional manner, and in such manner as to minimize interruption of any lawful activities conducted by the Licensor. At no time during the performance of the activities conducted on the Licensor Property shall Licensee or Licensee Parties create, suffer or permit any dangerous or unsafe condition at the Licensor Property. In the event Licensor reasonably determines that Licensee's activities in any way endanger the Licensor Property, Licensor may, at Licensor's reasonable discretion, temporarily halt the use of Licensor's Property by Licensee or any of its contractors until proper and appropriate protective measures have been taken to eliminate such endangerment. Licensee shall pay all utility service fees associated with the Work on the Licensor Property to the extent that Licensee uses such utilities in connection with the Work.
8. Condition of Licensor Property. Licensee accepts the Licensor Property “as is” and entry upon the Licensor Property by the Licensee is an acknowledgement by the Licensee DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 3 1828\01\3666630.1
that all dangerous places and defects in the Licensor Property are known to it. If this License is terminated prior to the conveyance of the Licensor Property to Licensee or an affiliate of EAH, then all improvements installed on the Licensor Property by the Licensee shall become the property of the Licensor. The Licensor shall have the right, upon not less than thirty (30) days notice to Licensee, to dispose of any property left by Licensee on the Licensor Property after termination of this License or after Licensee has vacated the Licensor Property.
9. Liens. Licensee shall not cause or permit to be enforced against the Licensor Property, or any part thereof any mechanics', materialmen's, contractors' or subcontractors' liens or any claim for damage arising from the work of any construction, excavation, survey, tests, grading, repair, restoration, replacement or improvement performed by, under or through Licensee or Licensee Parties, but Licensee shall pay or cause to be paid all of said liens, claims or demands before any action is brought to enforce the same against the Licensor Property. Notwithstanding anything to the contrary set forth above, if Licensee shall in good faith contest the validity of any such lien, claim or demand, then Licensee shall, at its expense, defend itself and Licensor against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against Licensor or the Licensor Property. Licensor reserves the right at any time and from time to time to post and maintain on the Licensor Property or any portion thereof or improvement thereon, such notices of nonresponsibility or otherwise as may be necessary to protect Licensor against liability for any such liens and claims.
10. Indemnity. Licensee shall indemnify, defend and hold harmless Licensor and Licensor's partners, and their respective members, trustees, employees, officers, directors, shareholders, agents, professional consultants and representatives, and its and all of their respective successors and assigns, and each of them (collectively, the "Indemnitees") from and against any loss, damage, injury, accident, fire or other casualty, liability, claim, cost or expense (including but not limited to, reasonable attorneys' fees and costs of court) of any kind or character to any person or property (collectively, the "Claims") arising from any work or conduct engaged in by Licensee and Licensee Parties pursuant to this Agreement. The foregoing indemnity and hold harmless obligations do not apply to the extent of any Claims, to the extent arising from or related to the gross negligence or intentional misconduct of Licensor or each of its agents, employees, consultants, contractors or tenants, but only in proportion to the extent so caused. This indemnification shall become effective upon the Effective Date and, except for acts or omissions occurring prior to the end of the Term, shall terminate at the expiration of the Term. This Section 10 shall survive the expiration or earlier termination of this Agreement.
11. Insurance. Prior to entry on the Licensor Property under this Agreement, Licensee shall have obtained the insurance required in the Ground Lease for the Licensor’s Property and provided Licensor with any required certificates.
12. Default by Licensee. If Licensee shall be in default of any of its material obligations under this Agreement and Licensee fails to cure such default within thirty (30) days after receipt of written notice from Licensor specifying the nature of such default, unless such default cannot reasonably be cured within such thirty (30) day period in which case such default shall be deemed to have been cured if Licensee commences to cure such default within such thirty (30) day period and thereafter diligently pursues completion of such cure, then Licensor may enforce all the DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 4 1828\01\3666630.1
remedies available to it at law or in equity, including without limitation termination of this Agreement.
13. Termination and Release. Upon expiration of the Term or other termination of this Agreement, Licensee shall cooperate with Licensor in the execution of a reasonable and customary instrument evidencing termination and release of this Agreement.
14. Notices. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (i) hand delivery, (ii) one business day after being deposited with Federal Express or another reliable overnight courier service for next day delivery, (iii) upon electronic transmission (except that if the date of such transmission is not a business day, then such notice shall be deemed to be given on the first business day following such transmission), or (iv) two business days after being deposited in the United States mail, registered or certified mail, postage prepaid, return receipt required, and addressed as follows:
If to Licensor: Paul Buddenhagen, City Manager
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Phone:
Fax:
With a copy to: Office of City Attorney
City of Emeryville
1333 Park Avenue
Emeryville, CA 94608
Phone:
Fax:
If to Licensee:
Each party shall make an ordinary, good faith effort to ensure that it will accept or receive notices that are given in accordance with this Section 13, and that any person to be given notice actually receives such notice. Any notice to a party which is required to be given to multiple addresses shall only be deemed to have been delivered when all of the notices to that party have been delivered pursuant to this Section. If any notice is refused, the notice shall be deemed to have been delivered upon such refusal. A party may change or supplement the addresses given above, or designate additional addressees, for purposes of this Section by delivering to the other party written notice in the manner set forth above.
15. No Assignment. The License is personal to Licensee, and Licensee shall not assign, transfer or sell the License or any privilege under this Agreement or the License in whole or in part, and any attempt to do so will be void and confer no right on any third party, and shall DocuSign Envelope ID: F9DEEB50-2987-4295-A842-92D153331FDA DocuSign Envelope ID: 0C07AA25-E031-481C-80E7-78CF75885948 5 1828\01\3666630.1
automatically terminate this Agreement; provided, however, that such restriction shall not prevent the Licensee from exercising the rights granted under this Agreement.
16. Survival of Covenants. All provisions of this Agreement shall be binding upon and inure to the benefit of all parties having or acquiring any right, title, or interest in the Licensor's Property and the Licensee's property, or any portion thereof or interest therein, and their successive owners and assigns.
17. Recordation. Neither this Agreement nor any memorandum thereof shall be recorded in the official records of the County of Alameda; provided, however, Licensor, at its sole discretion, may post a notice of non-responsibility at the Licensor Property, and thereafter record such notice against the Licensor Property in accordance with California Civil Code Section 8444.
18. Attorneys' Fees. If either party commences an action against the other to interpret or enforce any of the terms of this Agreement or because of the breach by the other party of any of the terms hereof, the losing party shall pay to the prevailing party reasonable attorneys' fees, costs and expenses and court costs and other costs of action incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment.
For the purpose of this Agreement, the terms "attorneys' fees" or "attorneys' fees and costs" shall mean the fees and expenses of counsel to the parties hereto, which may include printing, photostating, duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals, librarians and others not admitted to the bar but performing services under the supervision of an attorney. The terms "attorneys' fees" or "attorneys' fees and costs" shall also include, without limitation, all such fees and expenses incurred with respect to appeals, arbitrations and bankruptcy proceedings, and whether or not any action or proceeding is brought with respect to the matter for which said fees and expenses were incurred. The term "attorney" shall have the same meaning as the term "counsel."
19. Miscellaneous. This Agreement, constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings of the parties hereto, oral or written, are hereby superseded, and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver be a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of California. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions hereof. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute one and the same instrument. Time is of the essence of every provision hereof. Telecopied and email (pdf) signatures may be used in place of original signatures on this Agreement. [Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized representatives to execute this Agreement as of the Effective Date.
LICENSEE:
City of Emeryville,
a California municipal corporation
By: ___________________________
Paul Buddenhagen, City Manager
LICENSEE:
_____________ LP,
a California limited partnership
By:
By: ________________________
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EXHIBIT A
LICENSOR PROPERTY
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EXHIBIT B
LICENSEE PROPERTY
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EXHIBIT C
DESCRIPTION OF WORK ON LICENSOR PROPERTY
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