Agenda packet — Livermore City Council, January 10, 2022 (part 2 of 5)

ORDER NO. : 1117018101

EXHIBIT A
The land referred to is situated in the County of Alameda, City of Livermore, State of California, and is described as follows:

All of Lots 3 and 4, the Southwestern 100 feet of Lots 2, 5 and 6, and the Western 50 feet of Lots 9 and 10, Block 26, Maps of the Northern Addition of the Town of Livermore, filed September 20, 1875, Map Book 2, Page 51, Alameda county Records and merged by Certificate of Compliance, described as follows:

Beginning at the Southwest corner of said Block 26; thence from said point of beginning North 20° 30' West, 250.00 feet; thence North 69° 30' East, 100.00 feet; thence South 20° 30' East,

50.00 feet; thence North 69° 30' East 100.00 feet; thence South 20° 30' East 100.00 feet; thence South 69° 30' West, 100.00 feet; thence South 20° 30' West, 100.00 feet to the point of beginning.

APN: 098-0240-001-17
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EXHIBIT A
192

THIRD AMENDED AND RESTATED PROMISSORY NOTE
(Predevelopment Loan)
Dated: __________, 2021
Principa
l Amount: 460 North Livermore Avenue
$855,110.00 Livermore, California

FOR VALUE RE
CEIVED, the undersigned, Tri Valley BMR, LLC, a California limited liability company ("Borrower"), whose sole member is Housing Consortium of the East Bay, a California not-for-profit corporation, hereby promises to pay to the order of the City of Livermore, a municipal corporation, 1052 South Livermore Avenue, Livermore, CA 94550 ("Holder"), a principal amount of Eight Hundred Fifty-Five Thousand One Hundred Ten Dollars ($855,110.00), plus interest thereon pursuant to Section 2 below.

1. Borrower's Obligation. This promissory note (“ Note”) evidences Borrower's obligation to pay Holder the principal amount of Eight Hundred Fifty-Five Thousand One Hundred Ten Dollars ($855,110.00) (the "Loan") for the funds loaned to Borrower by Holder to fund certain feasibility studies and other specified predevelopment tasks and activities for the Property located at 460 North Livermore Avenue in Livermore, CA, and amends and restates in part that certain Amended and Restated Promissory Note dated October 2, 2018. On June 30, 2017 the City entered into a Predevelopment Loan Agreement with the Borrower to help finance initial predevelopment and acquisition expenses necessary to assess the feasibility of potential development of the Project and to gain entitlements to develop the Property, as subsequently amended by that certain First Amendment to Predevelopment Loan dated June 26, 2018 and that certain Second Amendment to Predevelopment Loan Agreement dated September 25, 2018, each to increase the loan amount to include additional funds for the predevelopment budget (as amended, the “City Predevelopment Loan Agreement”). The Predevelopment Loan Agreement has expired. As of the Effective Date, of the total proceeds of the City Predevelopment Loan (the "City Predevelopment Loan Proceeds"), $646,238 have been disbursed and Two Hundred Eight Thousand Eight Hundred Seventy-Two Dollars ($208,872) remain available. City and Developer now wish to subsume and the restate the terms of the City Predevelopment Loan Agreement in the City Development Loan Agreement dated as of even date herewith (the “Agreement”). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Agreement.

EXHIBIT A
193
law (the “Default Rate”); provided however, if any payment due hereunder is not paid when due, the Default Rate shall apply commencing upon the due date for such payment. When Borrower is no longer in default, the Default Rate shall no longer apply, and the interest rate shall once again be the rate specified in the first paragraph of this Note. Notwithstanding the foregoing provisions, if the interest rate charged exceeds the maximum legal rate of interest, the rate shall be the maximum rate permitted by law. The imposition or acceptance of the Default Rate shall in no event constitute a waiver of a default under this Note or prevent Holder from exercising any of its other rights or remedies.

3. Term and Repayment Requirem ents. The term of this Note and repayment due under this Note are as set forth in Section 4.2 of the Agreement.

4. No Assumption. Except as may be otherwise set forth in the Agreement, this Note shall not be assumable by the successors and assigns of Borrower without the prior written consent of Holder.

5. Security. This Note is secured by the that certain Deed of Trust and Assignment of Rents dated October 2, 2018 and recorded against the property, in the Official Records of Alameda County on October 2, 2018 as Instrument # 2018191365, wherein the Borrower is the Trustor and the Holder is the Beneficiary (the "Security Instrument"). Holder shall be entitled to the benefits of the Security Instrument and shall have the right to enforce the covenants and agreements contained herein, in Security Instrument, and in the First Amended and Restated Affordable Housing Regulatory Agreement executed by and between Holder and Borrower as a condition of the Agreement. Any restrictive covenants executed by and between Holder and Borrower as a condition of the Agreement shall remain effective for the full duration of those restrictions and shall survive repayment of this Note.

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 the Community Development Department, 1052 South Livermore Avenue, Livermore, CA 94550, Attention: Finance Department, 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.

EXHIBIT A
194
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.

7. Non-Recourse. Except as expressly provided in this Section 7, neither Borrower nor the sole member of Borrower shall have personal liability for payment of the principal of, or interest on, this Note, and the sole recourse of Holder with respect to the payment of the principal of, and interest on, this Note shall be to the Project, the Property and any other collateral held by Holder as security for this Note; provided however, nothing contained in the foregoing limitation of liability shall:

(a) impair the enforcement against all such security for the Loan of all the rights and remedies of the Holder under the Security Instrument and any financing statements Holder files in connection with the Loan as each of the foregoing may be amended, modified, or restated from time to time;
(b) impair the right of Holder to bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Holder to enforce and realize upon the Security Instrument, the interest in the Project and the Property created thereby and any other collateral given to Holder in connection with the indebtedness evidenced hereby and to name the Borrower as party defendant in any such action; (c) be deemed in any way to impair the right of the Holder to assert the unpaid principal amount of the Loan as a demand for money within the meaning of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; (d) constitute a waiver of any right which Holder may have under any bankruptcy law to file a claim for the full amount of the indebtedness owed to Holder hereunder or to require that the Project and the Property shall continue to secure all of the indebtedness owed to Holder hereunder in accordance with this Note and the Security Instrument; or (e) limit or restrict the ability of Holder to seek or obtain a judgment against Borrower to enforce against Borrower and its sole member to:
(i) recover under any provision of the Agreement, Security Instrument, First Amended and Restated Affordable Housing Regulatory Agreement, or Note that obligates Borrower to indemnify Holder, or
(ii) recover from Borrower and its sole member’s compensatory damages as well as other costs and expenses incurred by Holder (including without limitation reasonable attorneys’ fees and expenses) arising as a result of the occurrence of any of the following:
(a) any fraud or intentional misrepresentation on the part of the Borrower, or its sole member, or any officer, director or authorized representative of Borrower or its sole member in connection with the request for or creation of the Loan, or in any Loan Document, or in connection with any request for any action or consent by Holder in connection with the Loan;
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(b) any failure to maintain insurance on the Property and the Project as required pursuant to the Loan Documents;
(c) failure to pay taxes, assessments or other charges which may become liens on the Property or the Project;
(d) the presence of Hazardous Materials on the Property or other violation of the Borrower’s obligations under Article 7 of the Agreement, except as limited by the provisions therein;
(e) the occurrence of any act or omission of Borrower that results in waste to or of the Project or the Property and which has a material adverse effect on the value of the Project or the Property;
(f) the material misapplication of the Loan proceeds;
(g) the removal or disposal of any personal property or fixtures or the retention of rents, insurance proceeds, or condemnation awards in violation of the Security Instrument;
(h) the material misapplication of the proceeds of any insurance policy or award 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 Project or the Property; and
(i) the failure of Borrower to pay all amounts payable under this Note in full if Borrower Transfers the Property in violation of the Agreement or restrictive covenants subsequently executed by Holder and Borrower as a condition of the Agreement.

8. Event of 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 when due within ten (10) days of written notice by 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 any applicable notice and cure period set forth in Article 10 of the 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 Agreement or the Security Instrument, subject to notice and cure periods, if any, set forth therein.

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(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 Security Instrument shall at the option of the Holder become immediately due and payable upon written notice by the Holder to the Borrower without further demand.

(c) The 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 the 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.

9. 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) 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.

10. 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 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; if amended, it must be by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
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(d) This Note shall be governed by and construed in accordance with the laws of the State of California.

(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:

TRI VALLEY BMR, LLC
a California limited liability company

By: Housing Consortium of the East Bay,
a California nonprofit public benefit corporation,
its sole member and manager

By: _________________________
Its: _________________________

CITY:

CITY OF LIVERMORE,
a California municipal corporation

By:

Print Name: Marc Roberts

Title: City Manager

ATTEST:

By: __________________________

APPROVED AS TO FORM:

City Attorney
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198

PROMISSORY NOTE
(Development Loan)
Dated: __________, 2021
Principal Amount: 460 North Livermore Avenue
$3,619,018.00 Livermore, California
FOR VALUE RECEIVED, the undersigned, Tri Valley BMR, LLC, a California limited liability company("Borrower"), whose sole member is Housing Consortium of the East Bay, a California not-for-profit corporation, hereby promises to pay to the order of the City of Livermore, a municipal corporation, 1052 South Livermore Avenue, Livermore, CA 94550 ("Holder"), a principal amount of Three Million Six Hundred Nineteen Thousand Eighteen Dollars ($3,619,018), plus interest thereon pursuant to Section 2 below.

1. Borrower's Obligation. This promissory note (“Note”) evidences Borrower's obligation to pay Holder the principal amount of Three Million Six Hundred Nineteen Thousand Eighteen Dollars ($3,619,018) (the "Loan") for the funds loaned to Borrower by Holder to fund the development of affordable housing on the Property located at 460 North Livermore Avenue in Livermore, CA. pursuant to the Affordable Housing herewith (the “Development Loan Agreement) All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Development Loan Agreement.

2. Interest.
(a) The outstanding principal balance of this Note shall bear simple interest at the rate of three percent (3%) per annum, commencing on the date of disbursement of Loan funds by Holder to Borrower.
(b) Provided, however, if an Event of Default occurs, interest on all amounts due under this Note shall begin to accrue, as of the date of the Event of Default and continuing until such time as the Loan funds are repaid in full or the Event of Default is cured, at the Default Rate of the lesser of ten percent (10%) per annum or the maximum rate permitted by law (the “Default Rate”); provided however, if any payment due hereunder is not paid when due, the Default Rate shall apply commencing upon the due date for such payment. When Borrower is no longer in default, the Default Rate shall no longer apply, and the interest rate shall once again be the rate specified in the first paragraph of this Note. Notwithstanding the foregoing provisions, if the interest rate charged exceeds the maximum legal rate of interest, the rate shall be the maximum rate permitted by law. The imposition or acceptance of the Default Rate shall in no event constitute a waiver of a default under this Note or prevent Holder from exercising any of its other rights or remedies.

3. Term and Repayment Requirements. The term of this Note and payments due under this Note are as set forth in Section 4.2 of the Development Loan Agreement. 2021-486 JLH/KJT
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4. No Assumption. Except as may be otherwise set forth in the Development Loan Agreement, this Note shall not be assumable by the successors and assigns of Borrower without the prior written consent of Holder.

5. Security. This Note is secured by the Deed of Trust on the Property dated concurrently herewith and recorded against the Property (the "Deed of Trust"), wherein the Borrower is the Trustor and the Holder is the Beneficiary. Holder shall be entitled to the benefits of the security provided by the Deed of Trust and shall have the right to enforce the covenants and agreements contained herein, in the Deed of Trust, the Development Loan Agreement, and the other City Documents, including without limitation, that certain First Amended and Restated Regulatory Agreement (“Regulatory Agreement”) dated as of the date hereof, executed by and between Holder and Borrower. The rent restrictions and other requirements set forth in the Regulatory Agreement shall remain effective for the full term of the Regulatory Agreement and shall survive the repayment of this Note.

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.

(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.

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(a) impair the enforcement against all such security for the Loan of all the rights and remedies of the Holder under the Deed of Trust and any financing statements Holder files in connection with the Loan as each of the foregoing may be amended, modified, or restated from time to time;
(b) impair the right of Holder to bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable Holder to enforce and realize upon the Deed of Trust, the interest in the Project and the Property created thereby and any other collateral given to Holder in connection with the indebtedness evidenced hereby and to name the Borrower as party defendant in any such action;
(c) be deemed in any way to impair the right of the Holder to assert the unpaid principal amount of the Loan as a demand for money within the meaning of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; (d) constitute a waiver of any right which Holder may have under any bankruptcy law to file a claim for the full amount of the indebtedness owed to Holder hereunder or to require that the Project and the Property shall continue to secure all of the indebtedness owed to Holder hereunder in accordance with this Note and the Deed of Trust; or (e) limit or restrict the ability of Holder to seek or obtain a judgment against Borrower to enforce against Borrower and its sole member to:
(i) recover under any provision of the City Documents that obligates Borrower to indemnify Holder, or
(ii) recover from Borrower and its sole member’s compensatory damages as well as other costs and expenses incurred by Holder (including without limitation reasonable attorneys’ fees and expenses) arising as a result of the occurrence of any of the following:
(a) any fraud or intentional misrepresentation on the part of the Borrower, or its sole member, or any officer, director or authorized representative of Borrower or its sole member in connection with the request for or creation of the Loan, or in any City Document, or in connection with any request for any action or consent by Holder in connection with the Loan;
(b) any failure to maintain insurance on the Property and the Project as required pursuant to the City Documents;
(c) failure to pay taxes, assessments or other charges which may become liens on the Property or the Project;
(d) the presence of Hazardous Materials on the Property or other violation of the Borrower’s obligations under Section 7.1.1 of the Development Loan Agreement, except as limited by the provisions therein; 2021-486 JLH/KJT
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(e) the occurrence of any act or omission of Borrower that results in waste to or of the Project or the Property and which has a material adverse effect on the value of the Project or the Property;
(f) the material misapplication of the Loan proceeds;
(g) the removal or disposal of any personal property or fixtures or the retention of rents, insurance proceeds, or condemnation awards in violation of the Deed of Trust;
(h) the material misapplication of the proceeds of any insurance policy or award 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 Project or the Property; and
(i) the failure of Borrower to pay all amounts payable under this Note in full if Borrower Transfers the Property in violation of the Development Loan Agreement or the Regulatory Agreement.

8. Event of 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 when due within ten (10) days of written notice by the Holder to the Borrower that such payment is due;

(iii) The occurrence of any Event of Default under any of the City 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 Development 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 become immediately due and payable upon written notice by the Holder to the Borrower without further demand.

EXHIBIT A
202
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.

9. Waivers.

10. 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 Development Loan Agreement, or to such addresses as the Holder and the Borrower may therein designate.

(c) This Note may not be changed orally; if amended, it must be 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.

(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.
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BORROWER:

TRI VALLEY BMR LLC
a California limited liability corporation

By: Housing Consortium of the East Bay
a California nonprofit public benefit corporation,
its sole member and manager

By: _________________________
Darin Lounds
Executive Director

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EXHIBIT A
204

1. RECORDING REQ

UESTED BY
Old Republic Title Company

AND WHEN RECORDE

D MAIL TO
City of Li
vermore
1052 S. Livermore Avenue
Livermore, Ca. 94550-4899
Loan No.:

Space Above This Line for Recorder’s Use Only
A.P.N.
: [098-0240-001-17]
File No.:

DEED O

F TRUST AND ASSIGNMENT OF RENTS
(Short Form)
THIS D
EED OF TRUST, made this ______________ , 2021 between TRUSTOR: Tri Valley BMR LLC, a California Limited Liability Company whose address is 410 7th Street, Suite 203, Oakland, CA 94607
TRUSTEE: [ ]
and BENEFICIARY: City of Livermore, a Municipal Corporation Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF SALE, that property in the City of Livermore, Alameda County, State of California, described as:

SEE EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF
If the Trustor/Grantor shall sell, convey or alienate said property, or any part thereof, or any interest therein, or shall be divested of his title or any interest therein in any manner or way, whether voluntarily or involuntarily, without the written consent of the Beneficiary being first had and obtained, Beneficiary shall have the right, at its option, except as prohibited by law, to declare any indebtedness or obligations secured hereby, irrespective of the maturity date specified in any Note evidencing the same, immediately due and payable.

TOGETH
ER WITH the rents, issues, and profits thereof, SUBJECT, HOWEVER, to the right, power and authority given to and conferred upon Beneficiary by paragraph 10 of the provisions, incorporated by reference, to collect and apply such rents, issues and profits.

FOR THE PURPOSE OF SECURING: 1. Performance of each agreement of Trustor, incorporated by reference or contained herein. 2. Payment of the indebtedness evidenced by one Promissory Note of even date herewith, and any extension or renewal thereof, in the principal sum of $3,619,018, executed by Trustor in favor of Beneficiary or order. 3. Payment of such further sums as the then record Owner of said property hereafter may borrow from Beneficiary, when evidenced by another Note (or Notes) reciting it is so secured
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES: By the execution and delivery of this Deed of Trust and the Note secured hereby, that provisions (1) to (14), inclusive, of the fictitious deed of trust recorded in Santa Barbara County and Sonoma County on October 18, 1961, and in all other counties on October 23, 1961, in the book and page of the Official Records in the office of the county recorder of the county where said property is located, noted below and opposite the name of such county, viz:

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205

2. 3.

Signature of Trustor(s)

Dated: ,

Darin Lounds, Executive Director, Housing
Consortium of the East Bay, Sole and Managing Member of Tri Valley BMR, LLC.

A.P.N. - Deed of Trust File No.:
and Assignment of Rents (Short Form) - continued
County Book Page County Book Page County Book Page County Book Page County Book Page Alameda 435 684 Imperial 1091 501 Merced 1547 538 San Benito 271 383 Siskiyou 468 181 Alpine 1 250 Inyo 147 598 Modoc 184 851 San Bernadino 5567 61 Solano 1105 182 Amador 104 348 Kern 3427 60 Mono 52 429 San Francisco A332 905 Sonoma 1851 689 Butte 1145 1 Kings 792 833 Monterey 2194 538 San Joaquin 2470 311 Stanislaus 1715 456 Calaveras 145 152 Lake 362 39 Napa 639 86 San Luis Obispo 1151 12 Sutter 572 297 Colusa 296 617 Lassen 171 471 Nevada 305 320 San Mateo 4078 420 Tehama 401 289 Contra Costa 3978 47 Los Angeles T2055 899 Orange 5889 611 Santa Barbara 1878 860 Trinity 93 366 Del Norte 78 414 Madera 810 170 Placer 895 301 Santa Clara 5336 01 Tulare 2294 275 EI Dorado 568 456 Marin 1508 339 Plumas 151 5 Santa Cruz 1431 494 Tuolumne 135 47 Fresno 4626 572 Mariposa 77 292 Riverside 3005 523 Shasta 684 528 Ventura 2062 386 Glenn 422 184 Mendocino 579 530 Sacramento 4331 62 Sierra 29 335 Yolo 653 245 Humboldt

657 527 San Diego Series 2 Book 1961, Page 183887 Yuba 334 486 which provisions, identical in all counties, are printed below) hereby are adopted and incorporated herein and made a part hereof as fully as though set forth herein at length; that he will observe and perform said provisions; and that the references to property, obligations, and parties in said provisions shall be construed to refer to the property, obligations, and parties set forth i n this Deed of Trust.

In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale be mailed to Trustor at Trustor's address hereinbefore set forth, or if none shown, to Trustor at property address.

FURTHERMORE, in the event of foreclosure or deed in lieu of foreclosure, any provisions herein or any provisions in any other collateral agreement restricting the use of the Property to low or moderate-income households or otherwise restricting the Trustor's ability to sell the Property shall have no further force or effect. Any person (including successors or assigns thereto) receiving title to the Property through a foreclosure or deed in lieu of foreclosure shall receive title to the Property free and clear from such restrictions.

NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.

A notary public or other officer completing this certificate verifies only the identity o f the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF California }
}ss.

COUNTY OF }

On___, before me, _________________________, Notary Public, personally appeared____, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

__________________________________ (Seal)
Signature of Notary Public

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EXHIBIT A 206
.

Deed of Trust
and Assignment of Rents (Short Form) - continued

DO NOT RECORD
The following is a copy of provisions (1) to (14), inclusive, of the fictitious Deed of Trust, recorded in each county In California, as stated in the foregoing Deed of Trust and incorporated by reference In said Deed of Trust as being a part thereof as if set forth at length therein.

TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good and workmanli ke manner any building which may be constructed, damaged or destroyed thereon, and to pay when due all claims for labor performed and materials furnished therefore; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. (2) To provide, maintain and deliver to Beneficiary fire Insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon indebtedness secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of B eneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorneys' fees in a reasonable sum, in any such action or proceeding in wh ich Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. (4) To pay: at least ten days before delinquency, all taxes and assessments affecting said property, including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
(5) To pay Immediately and without demand all sums so expended by Beneficiary or Trustee , with interest from date of expenditure at the rate called for in the note secured hereby, or at the amount allowed by law at date of expenditure, whichever is greater, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in this same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. (8) That at any time or from time to time, without liability therefore and without notice, upon written request of Beneficiary and presentation of this Deed of Trust and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof.
(9) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and said Note to Trustee for cancellation and retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee is such reconveyance may be described as "the person or persons legally entitled thereto. Five years after issuance of such full reconveyance, Trustee may destroy said Note and this Deed of Trust (unless directed in such request to retain them.)
(10) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or otherwise collect such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said pr operty, the collection of such rents, Issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act pursuant to such notice. (11) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and o f written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust, said Note(s) and all documents evidencing expenditures secured hereby.

After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and In such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.

After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the persons or persons legally entitled thereto. (12) Beneficiary, or any successor in ownership of any Indebtedness secured hereby may, from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its titJe, estate, rights, powers and duties, must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust Is recorded and the name and address of the new Trustee. (13) That this Deed of Trust applies to, insures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the Note secured hereby, whether or not named as Beneficiary herein. In this Deed of Trust, whenever the context so required, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. (14) That Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be party unless brought by Trustee.

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Deed of Trust
and Assignment of Rents (Short Form) - continued

------------------------------------------------------------------------DO NOT RECORD--------------------------------------------------------

REQUEST FOR FULL RECONVEYANCE
To be used only when note has been paid.

To: _________________, a California Corporation, Trustee

Dated: _________________________________________ _

The undersigned is the legal owner and holder of all indebtedness secured by the within Deed of Trust. All sums secured by said Deed of Trust have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel all evidences of indebtedness, secured by said Deed of Trust, delivered to you herewith together with said Deed of Trust, to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, the estate now held by you under the same.

Mail Reconveyance to:

Do not lose or destroy this Deed of Trust OR THE NOTE which it secures.

Both must be delivered to the Trustee for cancellation before reconveyance will be made.

Short Form
DEED OF TRUST _____________________ TITLE COMPANY, A CALIFORNIA CORPORATION

WITH POWER OF SALE

INDIVIDUAL

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EXHIBIT A

The land referred to is situated in the County of Alameda, City of Livermore, State of California, and is described as follows:

[TITLE COMPANY TO ATTACH]

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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Livermore
1052 S Livermore Avenue
Livermore, CA 94550
Attention: City Clerk

EXEMPT FRO

M RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.

FIRST AME

NDED AND RESTATED

AFFORDABLE HOUSING REGULATORY AGREEMENT
AND

DECLARATIO

N OF RESTRICTIVE COVENANTS
by and betwe
en

THE CITY OF

LIVERMORE
and

TRI VALLEY BMR
, LLC
_____________, 2022
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This First Amended and Restated Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _________, 2022 (“Effective Date”) by and between the City of Livermore, a municipal corporation (“City”) and Tri Valley BMR, LLC, a California limited liability company (“Owner”). The City and the Owner are collectively referred to herein as the “Parties.”

R E C I T A L S
A. Owner owns the real property located in the City of Livermore, Alameda County, California, at 460 North Livermore Avenue, known as Alameda County Assessor Parcel No. 098-0240-001-17, and more particularly described in Exhibit A attached hereto (the “Property”).

B. On September 27, 2018, the City entered into an Affordable Housing Loan Agreement with the Owner (the "City Acquisition Loan Agreement") to provide a loan to Owner in the amount of $2,270,000 (the “City Acquisition Loan”) to assist in financing acquisition of the Property. Pursuant to the City Acquisition Loan Agreement, Owner will develop, own, and operate an affordable housing development consisting of twenty-four (24) units of permanent, supportive, affordable rental housing for persons who are formerly homeless with related improvements supporting the residences, as well as approximately 6,000 square feet of services space for a variety of community-serving, non-profit programs including but not limited to food, basic needs, shelter, housing referral and counseling, and a commercial kitchen (the "Project”)
Capitalized terms used without definition herein shall have the meaning ascribed to such terms in the Development Loan Agreement.

C. In connection with the City Acquisition Loan, the City and Owner entered into that certain Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants dated as of September 27, 2018 and recorded October 2, 2018, as Instrument No. 2018191363 in the Official Records of Alameda County (the "Original Regulatory Agreement"), that certain Deed of Trust and Assignment of Rents (the “City Acquisition Deed of Trust”), dated as of October 2, 2018 and recorded October 2, 2018, as Instrument No. 2018191364 in the Official Records of Alameda County, and that certain Promissory Note dated as of October 2, 2018 (the “City Acquisition Note”). The purpose of this Agreement is to replace the Original Regulatory Agreement and to amend and restate the terms of restrictions for the Project and the Property. [NOTE: conform recitals to Loan Agreement (as revised)]
D. O n June 30, 2017 the City entered into an unrecorded Predevelopment Loan Agreement with the Owner to finance predevelopment expenses necessary to gain entitlements to develop the Project, as subsequently amended by that certain First Amendment to Predevelopment Loan dated June 26, 2018 and that certain Second Amendment to Predevelopment Loan Agreement dated September 25, 2018, each to increase the total Predevelopment Loan amount to Eight Hundred F ifty-Five Thousand One Hundred Ten Dollars ($855,110) (the "City Predevelopment Loan "). In connection with the City Predevelopment Loan, the City and Owner entered into that certain Deed of Trust and Assignment of Rents, dated October 02, 2018 and recorded October 02, 2018 as Instrument No. 2018191365 in the Official Records of 2021-486 JLH/KJT
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Alameda County (the “ City Predevelopment Deed of Trust ”), and that certain Amended and Restated Promissory Note dated October 2, 2018 (the “City Predevelopment Note ”). The City Predevelopment Loan Agreement has e expired with predevelopment funds remaining to be drawn, and Owner now requires additional funding for permanent financing to construct the Project.

Concurrently herewith, City and Owner will enter into a new loan agreement (the “Development Loan Agreement”) which will subsume and extend the terms of the City Predevelopment Loan and provide an additional Three Million Six Hundred Forty Thousand Five Hundred Twenty Two Dollars ($3,640,522) =) in loan funds for permanent financing to construct the Project ( “City Development Loan”). Concurrently with the execution of the City Development Loan Agreement, Owner will execute, and deliver to City, and as applicable, cause to be recorded in the Official Records: a City Development Loan Note to evidence Borrower’s obligation to repay the City Development Loan (“City Development Note”), a deed of trust in the amount of Three Million Six Hundred Forty Thousand Five Hundred Twenty Two Dollars ($3,640,522) that will provide City with a security interest in the Property (the “City Development Deed of Trust”) to secure the City Development Loan Note. The City Predevelopment Loan shall be evidenced by the existing City Predevelopment Deed of Trust and by that certain Third Amended and Restated Promissory Note (Predevelopment Loan) from Owner to City dated as of approximately even date herewith (the "Third City Predevelopment Note").

E. The City recognizes there is a shortage of affordable housing and, in particular, very low-income persons experiencing homelessness in Livermore face barriers which inhibit equal access to housing. Therefore, reserving affordable units for very low income, formerly homeless persons and providing services which allow them to be successful in maintaining housing is needed to offer equal access to housing.

F. The purpose of this Agreement is to satisfy the affordability requirements of the City’s affordable housing program and to regulate and restrict the occupancy and rents of the Project’s Restricted Units for the benefit of the Project occupants and set forth the use and maintenance of the community buildings. The Parties intend the covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s successors and assigns for the full term of this Agreement.

NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

1.1 Definitions; Exhibits. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits. [NOTE – conform definitions to Loan Agreement, as revised]
“ Actual Household Size" means the actual number of persons in the applicable household.
“Adjusted for Family Size Appropriate for the Unit” shall be determined consistent with Section 50052.5(h) of the California Health and Safety Code, subject to the application of federal rules and regulations applicable to Project financing sources, including Section 42(g)(2) of the Internal Revenue Code of 1986 as amended (or successor provision). 2021-486 JLH/KJT
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"Affordable Rent" means for units that are restricted for rental to households with incomes of not more than thirty percent (30%) of AMI, a monthly rent that does not exceed one- twelfth of thirty percent (30%) of thirty percent (30%) of Area Median Income, Adjusted for Family Size Appropriate for the Unit, less a utility allowance and other fees and charges required to be paid by tenants of the Project on a non-optional basis which have been approved by the City.
"Area Median Income " or "AMI" means the median income for Alameda County, California, adjusted for Actual Household Size, as determined pursuant to California Tax Credit Allocation (“TCAC”) regulations.
“City’s Authorized Representative” means the City Manager of the City of Livermore or his/her designee .
“City Documents” means collectively, this Agreement, the City Acquisition Loan Agreement, the City Notes, the City Deeds of Trust, and the Restated Regulatory Agreement, as amended.
“Claims ” is defined in Section 2.10.
“City Development Deed of Trust” is defined in Recital E. “City Acquisition Deed of Trust” is defined in Recital C. “City Acquisition Loan” is defined in Recital B.
“City Acquisition Note” is defined in Recital C.
“City Deeds of Trust ” is defined as that City Predevelopment Deed of Trust, C ity Development Deed of Trust, and City Acquisition Deed of Trust. “City Notes” is defined as the City Third Restated Predevelopment Note, City Acquisition Loan Note, and City Development Loan Note.
“City Development Loan” is defined in Recital D.
“Eligible Household” means a household for which gross household income upon initial occupancy does not exceed the maximum income level for a Restricted Unit as specified in Section 2.3 and Exhibit B.
“Indemnitees” is defined in Section 2.10.
“Livermore Homeless Client” is defined as a person/applicant household who has been verified as homeless and is receiving services from City-approved agencies/programs within the incorporated city limits.
“Marketing and Tenant Selection Plan” is defined in Section 6.5. “City Predevelopment Deed of Trust” is defined in Recital D. 2021-486 JLH/KJT
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“Rent” means the total of monthly payments by the Tenant of a Unit for the following:
use and occupancy of the Unit and land and associated facilities, including parking; any separately charged fees or service charges assessed by Owner that are customarily charged in rental housing and 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 Owner, and paid by the Tenant.
“Rent Restricted” means limited to an Affordable Rent. “Residential Project” means an affordable housing development on the Property consisting of up to 24 apartments (up to 23 affordable apartments and one unrestricted manager’s unit) targeted to persons who are formerly homeless with related improvements supporting the residences.
"Restricted Unit" means a dwelling unit that is restricted by the City pursuant to this Agreement pursuant to Section 2.1 and 2.3.
“Project” is defined in Recital B.
"Tenant" means a household legally occupying a Unit pursuant to a valid lease with Owner.
"Unit" means one of the twenty-four (24) units in the Project, including the manager's unit.

1.2 Exhibits. The following Exhibits are attached hereto and incorporated into this Agreement by this reference:

A Legal Description of Property
B Number of Restricted Units by Unit Size and Targeted Area Median Income Rent Limits (AMI) by Unit Size.

C Insurance Requirements
D Form of Annual Report

2. Use and Affordability Restrictions. Owner hereby covenants and agrees, for itself and its successors and assigns, that pursuant to this Agreement the Residential Project shall be used solely for the operation of a multifamily rental housing development of which eleven (11) units, which is no more than 49% of the total units, shall be Restricted Units. Owner represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.
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2.1 Livermore Homeless Program Units. To the extent permitted by law and consistent with the program regulations for funding sources used for development of the Residential Project, including Alameda County A1 Bond funds, throughout the Term of this Agreement and subject to Section 2.9 herein, Owner agrees to exercise a preference for the Restricted Units which shall first be marketed to and occupied by clients referred through an agency or agencies participating in homeless programs supported and approved by the City (such clients are “Livermore Homeless Clients” and such units are "Homeless Units") . To the extent a Homeless Unit remains unoccupied for a period of thirty (30) days due to the fact that a Livermore Homeless Client tenant has not been identified, then Owner may rent such Homeless Unit to any otherwise qualifying tenant, provided, however, that the next available unit shall be offered to a Livermore Homeless Client and made available as a Homeless Unit. The Livermore Homeless Client referral procedures may be established by separate Memorandum of Understanding approved by the City Manager, and the Homeless Unit selection policies shall be incorporated into the general tenant selection policies described in Section 6.5.

2.2 Supportive Services for Homel ess Units. Throughout the Term of this Agreement, Owner agrees to complete a needs assessment and service plan for each Homeless Unit occupant, and to provide onsite access to financial literacy, computer literacy, life-skills development, housing stability support, recreational, educational and community activities, conflict resolution and mediation, substance abuse treatment and health education programs. To the extent the on- site services are insufficient to meet the applicable service plan, then Owner will provide requisite referrals to additional off-site services.

2.3 Affordability and Occupancy Requirements. Throughout the term of this Agreement (as defined in Section 4.1 below) Owner agrees that (i) this Agreement restricts eleven (11) units, which represents no more than 49% of the total residential units in the Residential Project, as both Rent Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose gross household income is no greater than thirty percent (30%) of AMI, (“Restricted Units”); and, (ii) all other units, except for one (1) of the residential units in the Residential Project which shall be a manager’s unit for which rent will not be restricted, may be restricted by other public agency lenders which provide assistance to the Owner in developing the Project. For the purpose of determining whether a household is an Eligible Household, gross household income shall be determined in accordance with TCAC regulations and federal regulations applicable to low-income housing tax credits.

In the event that recertification of tenant incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each income group as specified in Section 2.3 and Exhibit B, Owner shall rectify the condition by renting the next available dwelling unit(s) in the Residential Project to Eligible Household(s) until the required income mix is achieved.

Notwithstanding anything to the contrary contained in this Agreement, if oth er Project lenders, Project investors, or regulatory agencies restrict a greater number of units than restricted by this Agreement or require stricter household income eligibility or affordability requirements than those imposed hereby, the requirements of such other lenders, investors or regulatory agencies shall prevail, including without limitation, the rent and occupancy requirements imposed in connection with the use of rent subsidies. 2021-486 JLH/KJT
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2.4 Rents for Restricted Units. For all Restricted Units rents shall be limited to Affordable Rents for households of the applicable income limit and presumed household size in accordance with Section 2.3 and Exhibit B. A household which at initial occupancy qualifies in a particular income category shall be treate d as continuing to be of such income category so long as the household’s gross income does not exceed one hundred forty percent (140%) of the applicable income limit.
a) For the purpose of determining whether a household is an Eligible Household, gross household income shall be determined in accordance with TCAC regulations and federal regul ations applicable to low-income housing tax credits. In the event that TCAC no longer publishes the income and rent information that this Agreement contemplates that TCAC will publish, respectively, the City shall provide Owner with other income and rent determinations which are reasonably similar with respect to methods of calculation to those previously published by TCAC, as applicable.
b) Subject to Section 2.3, if, upon recertification of the income of a t enant of a Restricted Unit, Owner determines that a Tenant of a Restricted Unit has an income exceeding the maximum qualifying income for a 30% AMI Household, such Tenant shall be permitted to continue occupying the Restricted Unit and upon sixty (60) days written notice, the Rent may be increased to one-twelfth (1/12th) of thirty percent (30%) of the actual adjusted i ncome of the Tenant or the current fair market rent for that unit, whichever is less , and Owner shall rent the next available Unit of the appropriate size to a 30% AMI Household at a Rent not exceeding the maximum Rent specified in this Section, or designate another Unit in the Residential Project with a 30% AMI household as a 30% Unit, at a Rent not exceeding the maximum Rent specified in this Section.
c) Initial Rents are subject to City approval. Rents may not be increased more often than once every twelve (12) months and by no more than five percent (5%) per year. Owner shall provide each Tenant with at least sixty (60) days written notice of any increase in Rent applicable to such Tenant. Owner shall comply with California rent control laws and tenant notification. If there are any overlaps between this Agreement and the law, the more restrictive limits and noticing requirements shall govern.

2.5 Loss of Subsidy. It is anticipated that certain Units in the Development (the "Subsidy Units") will receive Project-Based Section 8 or other rental subsidies (the " Rental Subsidy") throughout the Term, as reflected in the Financing Plan for the Project. If any change in federal law occurs, or any action (or inaction) by Congress or any federal or state agency occurs, which results in a material reduction, termination or nonrenewal of the Rental Subsidy through no fault of the Owner, such that the Rental Subsidy shown on the Finance Plan for the Development approved by the City is no longer available, Owner shall, in anticipation of such loss in Rental Subsidy, use good faith efforts for a period of ninety (90) days, to identify and obtain alternative sources of rental subsidies and shall provide the City progress reports on Owner's efforts to identify and obtain alternative sources of rental sub sidies. If at the end of such ninety (90) day period Owner is unable to secure an alternate source of rental subsidy, notwithstanding Section 2.4, Owner may increase the rent on one or more of the City Restricted Units that overlap with a Subsidy
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Unit, up to sixty percent (60%) of AMI (“TCAC Maximum Rent Limit”), subject to the following requirements:
a. Any such rent increase must be pursuant to a transition plan approved by the City showing how the rent increase will be implemented, and which Restr icted Units will be subject to the increase, and, if applicable, be consistent with remedial measures set forth in California Code of Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or successor regulation applicable to California's Federa l and State Low Income Housing Tax Credit Program; b. At the time Owner requests an increase in the Restricted Unit rent, Owner shall provide the City with a copy of the proposed Annual Operating Budget showing the impact of the loss or reduction of the Rental Subsidy;
c. Any subsequent rent increases remain subject to Section 2.4 above; and, d. The number of Restricted Units subject to the rent increase and the level of rent increase may not be greater than the amount required to ensure that the Residential Project generates sufficient income to cover its operating costs and debt service as shown on the Annual Operating Budget, and as is necessary to maintain the financial stability of the Development.
e. Owner must maintain, at a minimum, the affordability levels required by the density bonus provided under Livermore Development Code section 6.02.030. f. Upon receipt of any alternative rental subsidies, Owner shall reduce the rents on the Restricted Units back to the Affordable Rent, to the extent that the alternative rental subsidies provide sufficient income to cover the operating costs and debt service of the Development as shown on the Annual Operating Budget.

2.6 Rent Increases on Foreclosure .

Notwithstanding this Section 2.6, in the event that a Senior Lender (as defined in the Loan Agreement) foreclosures on the Project (or receives a deed in lieu of foreclosure), the Rents on one or more of the Restricted Units may be increased up to the TCAC Maximum Rent Limit to maintain the financial feasibility of the Project, subject to the following requirements:
a. Any such rent increase must be pursuant to a transition plan approved by the City showing: (i) how the rent increase will be phased-in; (ii) which Restricted Units will be subject to the increase; and (iii) the operating income and expenses for the Residential Project comparing the current rent structure to the proposed rent structure;
b. The number of Restricted Units subject to the rent increase and the level of rent increase may not be greater than the amount required to ensure that the Residential Project generates sufficient income to cover its operating costs and debt service, and as is necessary to maintain the fin ancial stability of the Development; and 2021-486 JLH/KJT
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c. The rent increase may occur only at the time of renewal of the term of the lease of an existing Tenant or the time of leasing a Restricted Unit to a new tenant. Any subsequent rent increases remain subject to Sect ion 2.3 above. d. Owner must maintain, at a minimum, the affordability levels required by the density bonus provided under Livermore Development Code section 6.02.030.

2.7 Manager’s Unit. One (1) dwelling unit in the Residential Project may be used as resident manager’s unit, and shall be exempt from the occupancy and rent restrictions set forth in this Agreement.

2.8 No Condominium Conversion. Owner shall not convert the Residential Project to condominium or cooperative ownership or sell condominium or cooperative rights to the Residential Project or any part thereof during the term of this Agreement.

2.9 Nondiscrimination; Compliance with Fair Housing Laws.

2.9.1 Fair Housing. Owner shall comply with state and federal fair housing laws in the marketing and rental of the units in the Project. Owner shall accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing Section 8 program or any successor thereto.

2.9.2 Non-Discrimination. Owner shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Owner covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Owner or any person claiming under or through Owner 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, of, or for the Property or part thereof. Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith.

All deeds, leases, and contracts pertaining to management of the Residential Project, made or entered into by Owner, its successors or assigns, as to any portion of the Property or the Improvements shall contain the following language:

(a) (1) In Deeds, the following language shall appear:

“Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against 2021-486 JLH/KJT
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or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.”

(b) (1) In Leases, the following language shall appear:

“The lessee herein covenants by and for the lessee and lessee’s heirs, personal representatives and assigns, and all persons claiming under the lessee or through the lessee, that this lease is made subject to the condition that there shall be no discrimination against or segregation of any person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry or disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.”

(c) In Contracts pertaining to management of the Residential Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:

“There shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference to selection, location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.”

2.10 Relocation. Notwithstanding eviction, persons residing on the Property shall not be displaced before suitable replacement housing is available. Owner shall ensure that all occupants of the Property receive all notices, benefits and assistance to which they are entitled.

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pursuant to any applicable relocation laws shall be paid by Owner, and City shall have no responsibility for payment therefor. Owner shall be liable for any and all claims for applicable relocation benefits sought by any current, former or future tenant of the Residential Project.

To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold the City and its elected and appointed officers, officials, employees, agents, consultants, contractors and representatives (collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) arising from the breach of Owner’s obligations set forth in this Section whether or not any insurance policies shall have been determined to be applicable to any such Claims. Owner’s indemnification obligations set forth in this Section (i) shall survive the expiration or earlier termination of this Agreement, and (ii) shall not extend to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees. City does not and shall not waive any rights against Owner that it may have by reason of any indemnity and hold harmless provision set forth in this Agreement because of the acceptance by City, or the deposit with City by Owner, of any of the insurance policies described in this Agreement.

2.11 Disabled Persons Occupancy.
a) Owner shall cause the Residential Project to be operated at all times in compliance with all applicable federal, state, and local disabled persons accessibility requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of 1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations, which relate to disabled persons access (collectively, the "Accessibility Requirements"). b) Owner shall indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to the City) the City, and its board members, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Owner's failure to comply with the Accessibility Requirements. This obligation to indemnify survives termination of this Agreement, repayment of the City Loans and the reconveyance of the Deeds of Trust.

3. Tenant Income Certifications; Reporting Requirements; Access to Information; Inspections.

3.1 Tenant Income Certification. Owner or Owner’s authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, a written certificate containing all of the following in such format and with such supporting documentation as City may reasonably require:
(i) The identity of each household membe r;
(ii) The total gross household income (as determined pursuant to Section 2.3); and 2021-486 JLH/KJT
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Owner shall retain such certificates for not less than five (5) years, and upon City’s request, shall provide copies of such certificates to City and make the originals available for City inspection.

3.2 Annual Report; Inspections. Following completion of construction of the Project, by not later than March 1 of each year during the term of this Agreement, Owner shall submit an annual report (“Annual Report”) to the City in form satisfactory to City, together with a certification that the Residential Project is in compliance with the requirements of this Agreement. Notwithstanding the Annual report requirements, Owner shall submit to the City an initial lease up report containing the tenant certification and occupancy information described in this section. The Annual Report shall, at a minimum, include the following information for each dwelling unit in the Residential Project: (i) unit number; (ii) number of bedrooms; (iii) current rent and other charges; (iv) dates of any vacancies during the previous year; (v) number of people residing in the unit; (vi) total gross household income of residents; (vii) documentation of source of household income; and (viii) the information required by Section 3.1.

Owner shall include with the Annual Report, an income recertification for each household, documentation verifying tenant eligibility, and such additional information as City may reasonably request from time to time in order to demonstrate compliance with this Agreement. The Annual Report shall conform to the format requested by City; provided however, during such time that the Residential Project is subject to a regulatory agreement restricting occupancy and/or rents pursuant to requirements imposed in connection with the use of state or federal low-income housing tax credits, Owner may satisfy the requirements of this Section that pertain to tenant income certification and rents by providing City with a copy of compliance reports required in connection with such financing.

In addition to the information described above, the Annual Report shall include the following:
(i) A Residential Project income and expense statement for the reporting period;

(ii) Proposed annual budget for the next fiscal year which sets forth Owner’s estimate of operating income, operating expenses and debt service for the year, amounts payable to reserves and proposed rent adjustments;

(iii) A report on maintenance and other issues anticipated to affect the current budget needs of the Residential Project as well as the amount in the Residential Project’s reserve accounts and the amount expected to be needed for major repairs or other needs during the new fiscal year;

(iv) Information on the status of the waiting list for units, including the number of households on the list and the number of persons qualifying for each of the City’s selection preference categories on the list; and

(v) A financial audit of the books and records of the Residential Project prepared in accordance with generally accepted auditing standards by an independent certified public accountant. City may require the audit to be accompanied by a supplemental report prepared in accordance with City’s requirements.
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(vi) City may, from time to time request additional or different information, and Owner shall promptly supply such information in the reports required hereunder.

3.3. Maintenance of Records.

3.3.1 Owner shall maintain all records regarding the construction of the Project for five (5) years after final payment and all other pending matters are closed. Owner shall also maintain tenant leases, income certifications and other matters related to the leasing of the affordable units for a period of five (5) years after the final date of occupancy by the tenant.

3.3.2 Records must be kept accurate and up- to-date. City shall notify Owner of any records it deems insufficient. Owner shall have fifteen (15) calendar days from such notice to correct any specified deficiency in the records, or, if more than fifteen (15) days shall be reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within fifteen (15) days and diligently pursue the correction of the deficiency as soon as reasonably possible.

3.4 Access to Records; Inspections.

3.4.1 Owner shall provide City and its authorized agents and representatives access to any books, documents, papers and records of the Residential Project for the purpose of making audits, examinations, excerpts and transcriptions.

3.4.2 With 48-hours’ notice, during normal business hours and as often as may be deemed necessary, City and its authorized agents and representatives shall be permitted access to and the right to examine the Residential Project and the Property and to interview tenants and employees of the Project, for the purpose of verifying compliance with applicable regulations and compliance with the conditions of this Agreement and the other City Documents.

4. Term of Agreement.

4.1 Term of Restrictions. This Agreement shall remain in effect until the fifty-fifth (55th) anniversary of the City’s issuance of a final certificate of occupancy for the Project.

4.2 Effectiveness Succeeds Conveyance of Property and Repayment of Loan. This Agreement shall remain effective and fully binding for the full term hereof regardless of (i) any sale, assignment, transfer, or conveyance of the Project or Owner’s fee interest in the Property, or any part thereof or interest therein, (ii) any payment, prepayment or extinguishment of the Loan, the Note (iii) any reconveyance of the Deed of Trust.

4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement upon the expiration of the term.

5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this 2021-486 JLH/KJT
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Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the tenants of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby. Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City.

6. Property Management; Repair and Maintenance; Marketing.

6.1 Management Responsibilities. Owner shall be responsible for all management functions with respect to the Property and the Residential Project , including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. City shall have no responsibility for management or maintenance of the Property or the Residential Project.

Owner shall submit its written management policies with respect to the Residential Project (the “Management Plan”) to the City for its review and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this Agreement. The Management Plan shall minimally include the following:
a)A parking management plan which details, among other things, how parking spaces wil l be allocated assigned, and how parking will be managed to encourage tenants, services providers and guests to use parking in accordance with the plan; b) Procedures for maintenance and management of the Residential Project; c) Procedures for dealing with tenant or neighborhood issues or concerns; d)Procedures for maintaining a reserve account, budgeting for maintenance and repair ne eds as well as longterm rehabilitation needs, and handling net cash flow; and e) Such other requirements and criteria/procedures as City may determine appropriate.

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6.2 Management Entity and Replacement of Management Agent . City shall have the right to review and approve the qualifications of the management entity proposed by Owner for the Residential Project, and shall have the right to review and approve any agreement executed between Owner and the management entity, which approval shall not be unreasonably withheld. The contracting of management services to a management entity shall not relieve Owner of its primary responsibility for proper performance of management duties.

City hereby approves Housing Consortium of the East Bay, a California nonprofit public benefit corporation, as the initial management entity for the Residential Project. Any subsequent management entity shall be subject to City review and approval, which shall not be unreasonably withheld or delayed. Upon City determination and delivery of written notice to Owner that Owner has failed to operate the Residential Project in accordance with this Agreement, subject to any applicable cure period and the approval of the Project lenders and equity investors, City may require Owner to contract with a qualified management agent selected by City and approved by the Project lender and equity investor, to operate the Residential Project, or to make such other arrangements as City deems necessary to ensure performance of the required functions. An on- site property management representative is required to reside on the property. If the on-site property management representative is not also the assigned property management staff for the Residential Project, then the representative shall still be available to address resident issues and to serve as the point of contact for City business and the public after regular business hours at the Property.

6.3 Repair, Maintenance and Security. Throughout the term of this Agreement, Owner shall at its own expense, maintain the Property and the Residential Project in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the Residential Project and the Property (including without limitation, the residential units, common areas, meeting rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Residential Project. Owner shall prevent and/or rectify any physical deterioration of the Property and the Residential Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair. Owner shall provide adequate security measures for the Residential Project, including without limitation, the installation of adequate lighting and deadbolt locks.

6.3.1 Additional Requirements. All construction work and professional services for the Residential Project shall be performed by persons or entities licensed or otherwise authorized to perform the applicable work or service in the State of California and shall have a current City of Livermore business license if required under local law. To the extent allowed by state and federal laws, Owner shall limit the installation of satellite dish, antenna and other such equipment to screened locations on the Property as approved by the City. Owner shall diligently work to resolve complaints related to noise, parking, litter or other neighborhood concerns.

6.4 City’s Right to Perform Maintenance. In the event that Owner breaches any of the covenants contained in Section 6.3, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general 2021-486 JLH/KJT
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maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 10% per annum or the highest rate permitted by applicable law.

6.5 Marketing and Tenant Selection Plan. Not later than ninety (90) days following commencement of construction work on the Project, Owner shall submit for City review and approval, a plan for marketing and tenant selection for the Property ("Marketing and Tenant Selection Plan" or “Plan”). The Plan shall address in detail how Owner plans to market the Restricted Units to prospective Eligible Households, including the preference for Livermore Homeless Clients, in accordance with fair housing laws and this Agreement, Owner’s tenant selection criteria, City preferences, and how Owner plans to certify the eligibility of Eligible Households. The Plan shall include the proposed form of application, marketing materials and the form of rental agreement that Owner proposes to enter into with Residential Project tenants.

Owner shall abide by the terms of the Marketing and Tenant Selection Plan in marketing, and selecting tenants for the Property and the Residential Project, and throughout the term of this Agreement, shall submit proposed modifications to City for review and approval.

In addition to the foregoing, the Marketing and Management Plan shall address the following:
(a) The actions to be taken by Owner to affirmatively market units in compliance with fair housing laws and in compliance with City’s policies and procedures, including the policies described in Section 2.9 above;

(b) Criteria for determining tenant eligibility, including certification of household income and size, disability status of household members or other qualifying criteria, and establishing reasonable occupancy standards (which shall not exceed standards established by state and federal fair housing laws and state housing and building codes), and procedures for screening prospective tenants, including obtaining credit reports, unlawful detainer reports, landlord references and criminal background investigations;

(c) A requirement that eligible tenants be selected based on order of application, selection preference, lottery or other reasonable method approved by City and incorporates a method of prioritizing and establishing a screening order for applications. The preference system shall assign an order to Eligible Households for Restricted Units as follows: first to Livermore Residents; then to other Eligible Households.

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(e) A requirement that ineligible applicants be notified of the reason for their ineligibility;

(f) Specific procedures through which applicants deemed to be ineligible may appeal this determination;

(g) Maintenance of a waiting list of eligible applicants, including specific procedures for screening Project Based Section 8 eligible applicants in coordination with the Housing Authority of the City of Livermore;

(h) Specific procedures for obtaining documentation regarding prospective tenants’ incomes, as necessary, to certify that such income does not exceed income limits;

(i) Specific procedures for certification and recertification of household incomes and procedures for handling over-income tenants;

(j) A requirement that a written rental agreement (subject to City approval) be executed with each eligible household selected to occupy a unit;

(k) Such other requirements and criteria/procedures as City may determine appropriate.

6.6 Residential Lease Provisions. No later than four (4) months prior to the date construction of the Project is projected to be complete, Owner shall submit to the City Owner’s proposed form of residential lease agreement for the City's review and approval. The form of lease must comply with all requirements of this Agreement, the other Loan Documents and must, among other matters:
a) Provide for termination of the lease and consent by the Tenant to immediate eviction for failure: (i) to provide any information required under this Agreement or reasonably requested by Owner to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Residential Project in accordance with the standards set forth in this Agreement, or (ii) to qualify as a 30% or 50% AMI household, as applicable, as a result of any material misrepresentation made by such Tenant with respect to the income computation. b) Be for an initial term of not less than one (1) year, unless by mutual agreement between the Tenant and Owner, and provide for no increase in Rent during such year. After the initial year of tenancy, the lease may be month -to-month by mutual agreement of Owner and the Tenant. Notwithstanding the above, any Rent increases shall be subject to the requirements of Section 2.4.
c) Include a provision which shall require a Tenant who is residing in a Restricted Unit made accessible pursuant to Section 5.10 of the Loan Agreement and who is not in need of an accessible unit to move to a non-accessible unit when a non- 2021-486 JLH/KJT
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accessible unit becomes available and another Tenant or prospective Tenant is in need of an accessible unit.
d) Include any provisions necessary to comply with the re quirements of the Violence Against Women Reauthorization Act of 2013 (Pub. L. 113–4, 127 Stat. 54) applicable to HUD-funded programs.5) Any termination of a lease or refusal to renew a lease for a Restricted Unit within the Development must be preceded by not less than sixty (60) days written notice to the Tenant by Owner specifying the grounds for the action.6) Include a detailed listing of reasonable rules of conduct and occupancy which shall be in writing, shall be consistent with federal and state law, and shall be provided to each tenant upon occupancy;
7) Include a requirement that there be no storage on balconies and patios and that tenants must keep all balconies, patios and other exterior areas neat, clean and clutter free, including no clotheslines or laundry.

6.7 Approval of Amendments. If City has not responded to any submission of the Marketing and Tenant Selection Plan, the proposed management entity, the proposed management agreement, or a proposed amendment the Management Plan, the Resident Services Plan or Resident Service Budget or change to any of the foregoing within sixty (60) days following City’s receipt of such plan, proposal, agreement or amendment, the plan, proposal, agreement, or amendment shall be deemed approved by City.

6.8 Resident Services Plan and Budget.
a) No later than six (6) months prior to the projected date of the completion of the Project, Owner shall submit to the C ity a plan for providing supportive services to the Tenants (the "Resident Services Plan") and a budget for providing those services (the "Resident Services Budget") for the initial year of operation of the Residential Project. The Resident Services Plan must identify service provider(s) and staffing levels, and describe the services provided. The Resident Services Plan must include copies of contracts and/or memoranda of understanding for the provision of services by service providers, along with any annual compliance certifications.

The Resident Services Budget must state the dollar value of the services, and the funding source(s) for the services (cash or in -kind).
b) Upon receipt by the City of the proposed Resident Services Plan and Resident Services Budget, the C ity shall promptly review the same and approve or disapprove it within fifteen (15) days, provided that such approval shall not be unreasonably denied. If the Resident Services Plan and/or Resident Services Budget are not approved by the C ity, the City shall set forth in writing and notify Owner of the City's reasons for withholding such approval, which may include a request by the C ity for a change in the nature or scope of resident services or a change in service provider. Owner shall, within fifteen (15) days thereafter, submit a revised Resident Services Plan and/or Resident Services Budget for C ity approval in accordance with this subsection. If the C ity does not approve the revised Resident Service Plan, Owner shall be in Default hereunder.
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Plan and Resident Services Budget by October 1st of each year of operation of the Development, identifying any changes made to the previously approved Resident Services Plan and Resident Services Budget. Any revisions to the Resident Services Plan and Resident Services Budget shall be subject to the C ity's review and approval and the process for timing and review of such revisions shall be subject to the process id entified in Section 6.7.

6.9 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies applicable to the Property or the Project, including without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall pay such charges prior to delinquency. However, Owner shall not be required to pay any such charge so long as (a) Owner is contesting such charge in good faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. The foregoing is not intended to impair Owner’s ability to apply for any applicable exemption from property taxes or other assessments and fees.

6.10 Insurance Coverage. Throughout the term of this Agreement Owner shall comply with the insurance requirements set forth in Exhibit C, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit C.

6.11 Property Damage or Destruction. If any part of the Residential Project is damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced as soon as reasonably practicable after the damage or loss occurs and shall be completed within one year thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible. During such time that lenders or low -income housing tax credit investors providing financing for the Project impose requirements that differ from the requirements of this Section the requirements of such lenders and inve stors shall prevail.

7. Recordation; Subordination. This Agreement shall be recorded in the Official Records of Alameda County. The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement to deeds of trust provided for the benefit of lenders identified in the financing plan submitted to City for the Project, as such plan may be updated with City approval, provided that the instruments effecting such subordination include reasonable protections to the City in the event of default, including without limitation, extended notice and cure rights.

8. Transfer and Encumbrance.

8.1 Restrictions on Transfer and Encumbrance. During the term of this Agreement, except as permitted pursuant to the Loan Agreement or this Agreement, Owner shall not directly or indirectly, voluntarily, involuntarily or by operation of law make or attempt any total or partial sale, transfer, conveyance, assignment or lease (collectively, “Transfer”) of the whole or any part of the Property, the Project, or the improvements located on the Property, without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, 2021-486 JLH/KJT
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prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement or the Loan Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by the investor limited partner to subsequent limited partners shall be restricted by this provision.

8.2 Permitted Transfers. Notwithstanding any contrary provision of the City Documents, the prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the granting of easements or permits to facilitate development of the Property; (ii) the dedication of any property required pursuant to the Loan Agreement; (iii) the lease of individual dwelling units to tenants for occupancy as their principal residence in accordance with this Agreement; (iv) the lease of the commercial kitchen facility; (v) assignments creating security interests for the purpose of financing the acquisition, construction, or permanent financing of the Project or the Property in accordance with the Loan Agreement, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; or (vi) the transfer of the managing partner’s interest in a limited partnership to a nonprofit entity that is tax-exempt under Section 501(c)(3) of the Internal Revenue Code of 1986 as amended (or to an entity wholly-owned thereby), provided such replacement general partner is reasonably satisfactory to City.

8.3 Requirements for Proposed Transfer s. The City may, in the exercise of its sole discretion, consent to a proposed Transfer of this Agreement, the Property, the Improvements or part thereof if all of the following requirements are met (provided however, the requirements of this Section 8.3 shall not apply to Transfers described in clauses (i), (ii), (iii) and (v) of Section

8.2,.
(i) The proposed transferee demonstrates to the City’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the City to competently complete and manage the Residential Project and to otherwise fulfill the obligations undertaken by the Owner under this Agreement. (ii) The Owner and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to affect any Transfer of all or any part of or interest in the Property, the Improvements or this Agreement together with such documentation of the proposed transferee’s qualifications and development capacity as the City may reasonably request.
(iii) The proposed transferee shall expressly assume all of the rights and obligations of the Owner under this Agreement and the other City Documents arising after the effective date of the Transfer and all obligations of Owner arising prior to the effective date of the Transfer (unless Owner expressly remains responsible for such obligations) and shall agree to be subject to and assume all of Owner’s obligations pursuant to the Conditions of Approval and all other conditions, and restrictions set forth in this Agreement. 2021-486 JLH/KJT
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(iv) Except in the case of partnership interest Transfers, t he Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.
(v) Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.

8.4 Effect of Transfer without City Consent. In the absence of specific written agreement by the City, no Transfer of the Property or the Project shall be deemed to relieve the Owner or any other party from any obligation under this Agreement. It shall be an Event of Default hereunder entitling City to pursue remedies including without limitation, acceleration of the Loan and/or foreclosure under the Deed of Trust if without the prior written approval of the City, Owner assigns or Transfers this Agreement, the Improvements, or the Property in violation of Section 8. This Section 8.4 shall not apply to Transfers described in clauses (i), (ii), (iii), (iv) and (v) of Section 8.2., clause (vi) of Section 8.2, provided that the provisions of this Section 8.3 shall apply to the selection of a replacement general partner in the event of a removal of the general partner in accordance with clause (v) of Section 8.2.

8.5 Recovery of City Costs. Owner shall reimburse City for all City costs, including but not limited to reasonable attorneys’ fees, incurred in reviewing instruments and other legal documents proposed to affect a Transfer under this Agreement and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee within ten (10) days following City’s delivery to Owner of an invoice detailing such costs.

8.6 Encumbrances . Owner agrees to use good faith commercially reasonable efforts to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property, the Project or part thereof in accordance with Section

9.1 of the Loan Agreement for the benefit of a lender other than City (“Third-Party Lender”) shall contain each of the following provisions: (i) Third-Party Lender shall use its best efforts to provide to City a copy of any notice of default issued to Owner concurrently with provision of such notice to Owner; (ii) City shall have the reasonable right, but not the obligation, to cure any default by Owner within the same period of time provided to Owner for such cure extended by an additional ninety (90) days; (iii) provided that City has cured any default under Third-Party Lender’s deed of trust and other loan documents, City shall have the right to foreclose the Deed of Trust, and take title to the Project without acceleration of Third-Party Lender’s debt; and (iv) City shall have the right to transfer the Project without acceleration of Third-Party Lender’s debt to a nonprofit corporation or other entity which shall own and operate the Project as an affordable rental housing Project, subject to the prior written consent of the Third-Party Lender.

Owner agrees to provide to City a copy of any notice of default Owner receives from any Third- Party Lender within five (5) business days following Owner’s receipt thereof.

8.7 Mortgagee Protection. No violation of any provision contained herei n shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon 2021-486 JLH/KJT
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all or any portion of the Project or the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred.

9. Default and Remedies.

9.1 Events of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"):
(i) The occurrence of a Transfer in violation of Section 8 hereof; (ii) Owner’s failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Owner to cure such default within five (5) days; (iii) Subject to Owner’s right to contest the following charges, Owner’s failure to pay taxes or assessments due on the Property or the Project or failure to pay any other charge that may result in a lien on the Property or the Project, and Owner’s failure to cure such default within twenty (20) days of delinquency, but in all events prior to the date upon which the holder of any such lien has the right to foreclose thereon;
(iv) A default arises under any loan secured by a mortgage, deed of trust or other security instrument recorded against the Property and remains uncured beyond any applicable cure period such that the holder of such security instrument has the right to accelerate repayment of such loan;
(v) A default arises under the Loan Agreement, the Note, or the Deed of Trust, and remains uncured beyond the expiration of any applicable cure period; (vi) Owner’s default in the performance of any term, provision or covenant under this Agreement (other than an obligation enumerated in this Section 9.1), and unless such provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non-monetary default following the date upon which City shall have given written notice of the default to Owner, or if the nature of any such non-monetary default is such that it cannot be cured within thirty (30) days, Owner’s failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default with due diligence and in good faith to completion, provided that Owner’s due diligence and good faith shall be determined in the City’s reasonable discretion and shall be demonstrated through efforts reported to the City no less frequently than monthly following the notice of default, but in no event longer than 180 days from receipt of the notice of default.

9.2 Remedies. Upon the occurrence of an Event of Default and its continuation beyond any applicable cure period, City may proceed with any of the following remedies:
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(i) Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; (ii) Accelerate and declare the balance of the Note and interest accrued thereon immediately due and payable and proceed with foreclosure under the Deed of Trust;
(iii) For violations of obligations with respect to rents for Restricted Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Affordable Rent;
(iv) Pursue any other remedy allowed under the City Documents or at law or in equity.

Each of the remedies provided herein is cumulative and not exclusive. The City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement.

10. Indemnity. To the greatest extent permitted by law, Owner shall indemnify, defend (with counsel approved by City) and hold the Indemnitees harmless from and against all Claims arising directly or indirectly, in whole or in part, as a result of or in connection with Owner’s construction, management, or operation of the Property and the Project or any failure to perform any obligation as and when required by this Agreement. Owner’s indemnification obligations under this Section 10 shall not extend to Claims to the extent resulting from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 10 shall survive the expiration or earlier termination of this Agreement. City does not and shall not waive any rights against Owner that it may have by reason of any indemnity and hold harmless provision set forth in this Agreement because of the acceptance by City, or the deposit with City by Owner, of any of the insurance policies described in this Agreement.

10.1 Terms Applicable to Indemnity Provisions. The terms set forth in this Section

10.1 shall apply to all provisions of this Agreement that pertain to Owner’s obligations to indemnify City and the other Indemnitees, including without limitation, Sections 2.10 and 10.

In connection with each such provision, all of the following shall apply:

(a) City does not and shall not waive any rights against Owner that it may have by reason of any indemnity and hold harmless provision set forth in this Agreement because of the acceptance by City, or the deposit with City by Owner, of any of the insurance policies described in this Agreement.

(b) Owner’s obligation to indemnify the Indemnitees shall not be limited or impaired by any of the following: (i) any amendment or modification of any City Document; (ii) any extensions of time for performance required by any City Document; (iii) any provision in any of 2021-486 JLH/KJT
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the City Documents limiting City’s recourse to property securing the Secured Obligations (as defined in the Deed of Trust, or limiting the personal liability of Owner, or any other party for payment of all or any part of the indebtedness evidenced by the Note; (iv) the accuracy or inaccuracy of any representation and warranty made by Owner under this Agreement or by Owner or any other party under any City Document, (v) the release of Owner or any other person, by City or by operation of law, from performance of any obligation under any City Document; (vi) the release or substitution in whole or in part of any security for repayment of the indebtedness evidenced by the Note; and (vii) City’s failure to properly perfect any lien or security interest given as security for repayment of the indebtedness evidenced by the Note.

(c) The obligations of Owner to indemnify the Indemnitees shall survive any repayment or discharge of the indebtedness evidenced by the Note, any foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the lien of the Deed of Trust.

11. Miscellaneous.

11.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties.

11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay
by City at any time to require strict performance by Owner of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.

11.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses 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 upon receipt if delivery is confirmed by a return receipt; or (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.

City: City of Livermore
1052 S. Livermore Avenue
Livermore, CA 94550
Attention: City Manager

Owner: Tri Valley BMR LLC
c/o Housing Consortium of the East Bay
410 7
th Street, Suite 203
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Oakland, CA 94607
Attention: Darin Lounds, Executive Director

11.4 Notice of Expiration of Term.

a) At least six (6) months prior to the expiration of the Term, Owner shall provide by first-class mail, postage prepaid, a notice to all Tenants containing (i) the anticipated date of the expiration of the Term, (ii) any anticipated increase in Rent upon the expiration of the Term, (iii) a statement that a copy of such notice will be sent to the City, and (iv) a statement that a public hearing may be held by the City on the issue and that the Tenant will receive notice of the hearing at least fifteen (15) days in advance of any such hearing. Owner shall also file a copy of the above-described notice with the City Manager.

b) In addition to the notice required above, Owner shall comply with the requirements set forth in California Government Code Sections 65863.10 and 65863.11. Such notice requirements include: (i) a twelve (12) month notice to existing tenants, prospective tenants and Affected Public Agencies (as defined in California Government Code Section 65863.10(a), which would include the City Manager) prior to the expiration of the Term, (ii) a six (6) month notice requirement to existing tenants, prospective tenants and Affected Public Agencies prior to the expiration of the Term; (iii) a notice of an offer to purchase the Development to "qualified entities" (as defined in California Government Code Section 65863.11(d)), if the Development is to be sold within five (5) years of the end of the Term; (iv) a notice of right of first refusal within the one hundred eighty (180) day period that qualified entities may purchase the Development.

11.5 Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement.

11.6 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.

Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. The relationship of Owner and City shall not be construed as a joint venture, equity venture, partnership or any other relationship. City neither undertakes nor assumes any responsibility or duty to Owner (except as expressly provided in this Agreement) or to any third party with respect to the Project. Owner and its employees are not employees of City but rather are, and shall always be considered independent contractors.

Furthermore, Owner and its employees shall at no time pretend to be or hold themselves out as employees or agents of City. Except as City may specify in writing, Owner shall not have any authority to act as an agent of City or to bind City to any obligation.

11.7 Action by the City. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City’s Authorized Representative or by any person who shall have been designated by the City’s Authorized Representative, without further approval by the City Council.

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11.8 Non-Liability of City and City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Owner or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Owner or its successor or for any obligation of City under this Agreement.

11.9 Headings; Construction; Statutory References. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. All references in this Agreement to particular statutes, regulations, ordinances or resolutions of the United States, the State of California, or the City of Livermore shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter amended or renumbered, or if repealed, to such other provisions as may thereafter govern the same subject.

11.10 Time is of the Essence. Time is of the essence in the performance of this Agreement.

11.11 Governing Law; Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed and heard in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California.

11.12 A ttorneys' Fees and Costs . If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.

11.13 Severability. If any provision of this Agreement is held invalid, illegal , or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.

11.14 Entire Agreement; Exhibits. This Agreement, together with the Loan Agreement, the Note, and the Deed of Trust, contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. Exhibits A through C, attached hereto are incorporated herein by this reference.

11.15 Counterparts.

This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

SIGNATURES ON FOLLOWING PAGE(S).
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IN WI
TNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants as of the date first written above.

CITY:

CITY OF LIVERMORE, a California municipal corporation

By:_______________________________

Print Name: Marc Roberts

Title:_City Manager

ATTEST:

By:__________________________

APPROVED AS TO FORM:

_____________________________
Assistant City Attorney

OWNER:

TRI VALLEY BMR, LLC,
a California limited liability company

By: Housing Consortium of the East Bay
a California nonprofit public benefit corporation,
its sole member and manager

By: _________________________
Darin Lounds
Executive Director

SIGNATURES MUST BE NOTARIZED.

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ACKNOWL

EDGMENT

State of California )
) ss
County of _ __________ )

On , before me, ___________, Notary Public_______________, (Name of Notary)

notary public, personally appeared ____ ______________________________ who 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.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

(Notary Signature)

A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
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ACKNOWL

EDGMENT

State of California )
) ss
County of ___________ )

On , before me,___________________________________________, (Name of Notary)

notary public, personally appeared ______ ______________________________ who 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.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

(Notary Signature)
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
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Exhibit A

LEGAL DESCRIPTION OF THE PROPERTY

(Legal Description Attached)
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Exhibit B

Number of Units by Unit Size and Targeted Area Median Income Rent Limits (AMI) by Unit Size

Unit
Type

Number of City-
Restricted Units by
Category
Number of Other
Affordable Units
by Category

Manager Unit

Total

Household
Size for
Purpose of
Establishing
Rent Limit
Maximum
Household
Size
15% 30% 15% 30%
Studio
11 6 1 - 18 1 2
1-BR

5 - 5 2 3
2-BR

1 1

Total

11 11 1 1 24

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Exhibit C

Insurance Requirements

(Insurance Requirements Attached)

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Exhibit D

Form of Annual Report

(Form of Annual Report Attached)
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EXHIBIT F

INSURANCE REQUIREMENTS
Minimum Scope and Limits of Insurance
Developer/Contractor shall maintain limits no less than:

1. Commercial General Liability, including operations, products, and completed operations, as applicable:
$3,000,000 per occurrence/$6,000,000 aggregate for bodily injury, personal injury and property damage. If Commercial General Liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Builders’ Risk (also known as Course of Construction). Limit should be the same as total contract costs, including soft costs and business interruption.

The City of Livermore shall be endorsed as Loss Payee.

3. Automobile Liability:
$1,000,000 per accident for bodily injury and property damage.

4. Workers’ Compensation and Employer's Liability:

Statutory limits as required by the State of California including $1,000,000 Employers’ Liability per accident, per employee for bodily injury or disease. A waiver of subrogation is required for Workers’ Compensation insurance. If Developer/Contractor is a sole proprietor, then they must sign “Contractor Release of Liability”.

5. Property . Developer is required to obtain and maintain property insurance coverage to cover full replacement value, to include improvements, and shall be written on an All Risk basis with a maximum deductible of $1,000 per property. The Property Insurance policy will also include a provision that protects the location and the City’s interest if the Property is vacant and/or unoccupied for more than thirty (30) days. Developer’s policy must also include a business interruption provision to cover loan payments for twelve (12) to twenty-four (24) months if the property is damaged and cannot be sold or occupied. Additionally, the City must also be named as a Loss Payee by endorsement such as 438 BFU NS or similar.

Deductibles and Self-Insured Retention
All self-insured retentions (SIR) must be disclosed to Risk Management for approval and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide, or be endorsed to provide, that the SIR may be satisfied by either the named insured or the City of Livermore. The City of Livermore reserves the right to obtain a full certified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of right to exercise later.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII and accepted to do business in the State of California, unless otherwise acceptable to the City of Livermore.
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Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

1. The City of Livermore, its officers, officials, employees, and designated volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Developer/Contractor; or automobiles owned, leased, hired, or borrowed by the Developer/Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City of Livermore, its officers, officials, employees, or volunteers.

2. The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. The additional insured coverage under the Developer’s/Contractor’s policy shall be primary and non-contributory and will not seek contribution from the City’s insurance or self-insurance and shall be at least as broad as ISO Form CG 20 10 04 13.

Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non- contributory basis for the benefit of the City of Livermore before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

3. Any failure to comply with reporting or other provisions of the policy, including breaches of warranties, shall not affect coverage provided to the City of Livermore, its officers, officials, employees, or volunteers.

4. The Developer’s/Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party before expiration of the policy unless notice is delivered in accordance with policy provisions.

6. It shall be a requirement under this agreement that any available insurance proceeds broader than, or in excess of, the specified minimum insurance coverage requirements and/or limits shall be available to the additional insured. Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.

7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550

Verification of Coverage
Developer/Contractor shall furnish certificates of insurance and endorsement(s) effecting coverage to the City of Livermore for approval. The endorsements shall be on forms acceptable to the City of Livermore. All certificates and endorsements are to be received and approved by the City of Livermore before work commences. The City of Livermore reserves the right to require complete and certified copies of all insurance policies required by this Agreement.

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Vineyard 11/1/21 Open Heart Kitchen Build-Out, Tenant Improvement Scenario: New Construction
Total Units 24 Source
NPLH Units 11 Donor 870,000
Percent Affordable 100% Dublin CDBG Equipment 330,000$
PBV 12 Total 1,200,000
DDA Yes
Land Value 10% 240,000$ Kitchen Build Out Cost 1,200,000 Improvements 90% 2,160,000$
Purchase Price 2,400,000$ Surplus (Gap)
Value Year 10 2,400,000$
per unit 100,000$

VINEYARD INITIAL FINANCING PLAN
Size 60% 25% 15% chk
Cost 70% 15% 15% Construction
SOURCES OF FUNDS Total Residential HRC Kitchen
Livermore Predevelopment 855,110$ 855,110$ 855,110$ 855,110$ Livermore Acquisition/Predevelopment 2,270,000$ 2,270,000$ 2,270,000$ 2,270,000$ Alameda County Supervisor's Funding 1,500,000$ 1,500,000$ 1,500,000$ 1,500,000$ City of Livermore Human Services Facility Fee 1,620,135$ 1,171,327$ 448,808$ 1,620,135$ 1,620,135$ Private Donor non OHK 1,130,000$ 800,000$ 330,000$ 1,130,000$ 1,130,000$ Dublin CDBG extra $300,000 300,000$ 300,000$ 300,000$ 300,000$ HCD NPLH 49% of Units 2,484,536$ 2,484,536$ 2,484,536$ Alameda County Measure 1A ($125K retention) 6,197,490$ 6,197,490$ 6,072,490$ 6,197,490$ City of Livermore HTF 3,640,522$ 2,575,529$ 1,064,993$ 3,640,522$ 3,640,522$ Pleasanton CDBG 214,012$ 214,012$ 214,012$ 214,012$ HCD NPLH COSR 1,985,412$ 1,985,412$ 1,985,412$
TOTAL SOURCES 22,197,217$ 16,368,077$ 3,036,320$ 2,792,820$ 17,602,269$ 22,197,217$ Surplus (Gap) (0)$ (0)$ 0$ 0$ 0$
Estimated Construction Loan 1,810,032$ 16,368,077 3,036,320 2,792,820 1,810,032$ 22,197,217$ City of Livermore Total 9,885,767$ (0)$ 0$ (0)$ (0)$ (0)$ Construction
Basis Costs Period Costs

ACQUISITION
Land 10% 240,000$ 144,000 60,000 36,000 240,000
Off Site Improvements and demolition 90% 2,160,000$ 1,296,000 540,000 324,000 0 2,160,000 Legal/Broker Fees/title/holding costs 35,000$ 21,000 8,750 5,250 0 30,000 Existing Improvements Value
Total Acquisition Cost 2,435,000$ 1,461,000$ 608,750$ 365,250$ 0 2,430,000

REHABILITATION
Kitchen Build Out (separate budget) -$ 0
Design/Market Escalation 0% -$ 0 0 0
Housing Midstate Escalation 100,000$ 70,000 15,000 15,000 0 Midstate Estimate 12,614,260$ 8,829,982 1,892,139 1,892,139 12,614,260 General Requirements 0
Prevailing Wages 0

ARCHITECTURAL FEES
Schematic 6% 234,490$ 164,143 35,174 35,174 220,000 DD-CA 867,750$ 607,425 130,163 130,163 10,000
Total Architectural Costs 5% 1,102,240$ 771,568 165,336 165,336 230,000 1,102,240 Survey/Engineering/Special Insp 100,000$ 70,000 15,000 15,000 30,000 100,000 CONSTR. INTEREST & FEES 0 0 0
Const. Loan Interest 70,000$ 49,000 10,500 10,500 0 70,000 County 1% fee 0 0 0 0 0
Origination Fee @ 1% 2% 21,000$ 14,700 3,150 3,150 0 21,000 Bank const inspections, other costs 25,000$ 17,500 3,750 3,750 22,500 25,000 Taxes 0 0 0
Builder's Risk 100,000$ 70,000 15,000 15,000 0 100,000 Title and Recording 30,000$ 30,000 0 30,000
Total Construction Interest and Fees 246,000 181,200 32,400 32,400 22,500 246,000

PERMANENT FINANCING
County/City Fees 35,000$ 35,000
(Blank) -$
Total Permanent Financing Costs 35,000$ 35,000$ -$ -$ 35,000

LEGAL FEES
Sponsor Legal 75,000$ 75,000 0
Blank -$
Lender Legal 50,000 50,000
Total Attorney Costs 75,000$ 75,000$ -$ -$ 50,000 75,000

RESERVES
Capitalized RR 2,000 48,000$ 48,000
Operating Reserve 75,000$ 75,000
NPLH HCD Transition Reserve 171,504$ 171,504
Operating Reserves (COSR from NPLH) 1,985,412$ 1,985,412 Total Reserve Costs 2,279,916 2,279,916 0 0

EXHIBIT G DEVELOPMENT BUDGET
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Total Appraisal Costs 7,000 7,000 12,000 7,000
Total Construction Contingency Costs 8.25% 1,040,676$ 728,474 156,101 156,101 1,040,676 1,040,676 OTHER
Property Tax & Maintenance & Insurance 100,000$ 100,000 100,000 Geotech 18,000$ 18,000 0 18,000
Development Consulting/CM 120,000$ 120,000 50,000 120,000 City Permit Fees/Impact Fees per 2_5_21 -$ 613,000$ 429,100 91,950 91,950 0 613,000 SWPP & Joint Trench 12,000$ 12,000 10,000 12,000
Soft Cost Contingency 207,625$ 145,338 31,144 31,144 250,000 207,625 ACM/Lead/Phase 1 6,500$ 6,500 0 6,500
Blank -$ 0 0 0 0
Blank -$ 0 0 0 0
Blank -$ 0 0 0 0
Utility Hook Ups PG&E, Water, Sewer 190,000$ 133,000 28,500 28,500 0 190,000 Furniture and Furniture Design 245,000$ 245,000 0 245,000 Total Other Costs 1,512,125 1,208,938 151,594 151,594 310,000 1,512,125 Total Project Cost 21,547,217 15,718,077 3,036,320 2,792,820 14,309,436 19,262,301

DEVELOPER COSTS
Developer Overhead/Profit -$
Consultant/Processing Agent -$ 0 0
Blank
Sponsor 3.0% 650,000$ 650,000 650,000 150,000
Sponsor at Risk -$
Total Developer Costs 650,000 650,000 0 0 650,000 150,000 TOTAL PROJECT COST 22,197,217 16,368,077 3,036,320 2,792,820 14,959,436 19,412,301 Syndication Costs
Legal - Syndication
Accountant (Cost Cert)
Consultant - Syndication (+$10k in costs of issuance)
Total Syndication Costs
TOTAL PROJECT COSTS INCL. SYNDICATION 22,197,217 16,368,077 3,036,320 2,792,820 14,959,436 19,412,301 per unit 924,884$ 682,003$ 100% 17,602,269
Construction Loan Amount 14,959,436 1,810,032
Vineyard Conversion
Sources
HCD NPLH 49% of Units 2,484,536$
Alameda County Measure 1A ($125K retention) 125,000$
Total 2,609,536$
Uses
Construction Lender Pay Down 1,815,032$
Capitalized RR 48,000$
Operating Reserve 75,000$
Developer Fee 500,000$
Total 2,438,032$
171,504$
2021-486 JLH/KJT
CC Contract No. 22-005

EXHIBIT A
246
Exhibit B
Vineyard
Predevelopment Uses of Funds
Updated Budget Updated
Expense 7/ 1/ 18 Additional Funds Budget
Architecture & Design Consultants 170, 040. 00 292, 500. 00 462, 540.00 Acquisition deposit 150, 000. 00 150, 000. 00
Phase 1 and HazMat Demo Survey 11, 300. 00 11, 300. 00
Survey
Appraisal 5, 500. 00 5, 500. 00
Green Building Program Fees
Rent Study - Commercial
Rent Study - Residential
Legal Fees 20, 000. 00 20, 000. 00
Lender Legal & Processing Fees
Site Maintenance during escrow period 50, 000. 00 50, 000. 00 Planning Application Fees 35, 000. 00 35, 000. 00
Developer Fee - Contigency Period 15, 000. 00 15, 000. 00 Developer Fee - Entitltements 15, 000. 00 15, 000. 00
Construction Manager
Project Manager 30, 000. 00 30, 000. 00
451, 840. 00 794, 340.00
Contingency 23, 270. 00 37, 500. 00 60, 770. 00
Total Predevelopment Costs 475, 110. 00 380, 000. 00 855, 110. 00

Page 1 of 1 ends

2021-486 JLH/KJT
CC Contract No. 22-005
EXHIBIT A 247

Exhibit I
Schedule of Performance

Task/Milestone Date
Complete Due Diligence 6/30/18
Preliminary Finance Plan to City 6/30/18
Obtain Planning Approvals 06/01/20
Financing Commitments 01/31/22
Submit Final Financing Plan to City 01/31/22

Close of Escrow - Construction
Financing
Within 60 days of
Obtaining Financing
Commitments

Commence Construction
Within 90 days of
Close of Escrow
Financing

Complete Construction
Within 24 months of
commencement of
construction

Page 1 of 1 ends

2021-486 JLH/KJT
CC Contract No. 22-005

EXHIBIT A
248
RE

CORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Livermore
1052 S Livermore Avenue
Livermore, CA 94550
Attention: City Clerk

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
S pace above this line for Recorder’s use.

FIRST AMENDED AND RESTATED

AFFORDABLE HOUSING REGULATORY AGREEMENT
AND

DECLARATION OF RESTRICTIVE COVENANTS
by and between

THE CITY OF LIVERMORE
and

TRI VALLEY BMR, LLC
_____________, 2022

EXHIBIT B
249

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This First Amended and Restated Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _________, 2022 (“Effective Date”) by and between the City of Livermore, a municipal corporation (“City”) and Tri Valley BMR, LLC, a California limited liability company (“Owner”). The City and the Owner are collectively referred to herein as the “Parties.”

D. On June 30, 2017 the City entered into an unrecorded Predevelopment Loan Agreement with the Owner to finance predevelopment expenses necessary to gain entitlements to develop the Project, as subsequently amended by that certain First Amendment to Predevelopment Loan dated June 26, 2018 and that certain Second Amendment to Predevelopment Loan Agreement dated September 25, 2018, each to increase the total Predevelopment Loan amount to Eight Hundred Fifty-Five Thousand One Hundred Ten Dollars ($855,110) (the "City Predevelopment Loan "). In connection with the City Predevelopment Loan, the City and Owner entered into that certain Deed of Trust and Assignment of Rents, dated October 02, 2018 and recorded October 02, 2018 as Instrument No. 2018191365 in the Official Records of Alameda County (the “ City Predevelopment Deed of Trust ”), and that certain Amended and

EXHIBIT B
250

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Restated Promissory Note dated October 2, 2018 (the “ City Predevelopment Note ”). The City Predevelopment Loan Agreement has e expired with predevelopment funds remaining to be drawn, and Owner now requires additional funding for permanent financing to construct the Project.

Concurrently herewith, City and Owner will enter into a new loan agreement (the “Development Loan Agreement”) which will subsume and extend the terms of the City Predevelopment Loan and provide an additional Three Million Six Hundred Forty Thousand Five Hundred Twenty Two Dollars ($3,640,522) in loan funds for permanent financing to construct the Project (“City Development Loan”). Concurrently with the execution of the City Development Loan Agreement, Owner will execute, and deliver to City, and as applicable, cause to be recorded in the Official Records: a City Development Loan Note to evidence Borrower’s obligation to repay the City Development Loan (“City Development Note”), a deed of trust in the amount of Three Million Six Hundred Forty Thousand Five Hundred Twenty Two Dollars ($3,640,522) that will provide City with a security interest in the Property (the “City Development Deed of Trust”) to secure the City Development Loan Note. The City Predevelopment Loan shall be evidenced by the existing City Predevelopment Deed of Trust and by that certain Third Amended and Restated Promissory Note (Predevelopment Loan) from Owner to City dated as of approximately even date herewith (the "Third City Predevelopment Note").

NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

1.1 Definitions; Exhibits. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits. “Actual Household Size" means the actual number of persons in the applicable household.
“Adjusted for Family Size Appropriate for the Unit” shall be determined consistent with Section 50052.5(h) of the California Health and Safety Code, subject to the application of federal rules and regulations applicable to Project financing sources, including Section 42(g)(2) of the Internal Revenue Code of 1986 as amended (or successor provision). "Affordable Rent" means for units that are restricted for rental to households with incomes of not more than thirty percent (30%) of AMI, a monthly rent that does not exceed one-

EXHIBIT B
251

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"Affordable Rent" means for units that are restricted for rental to households with incomes of not more than thirty percent (30%) of AMI, a monthly rent that does not exceed one- twelfth of thirty percent (30%) of thirty percent (30%) of Area Median Income, Adjusted for Family Size Appropriate for the Unit, less a utility allowance and other fees and charges required to be paid by tenants of the Project on a non-optional basis which have been approved by the City.
"Area Median Income " or "AMI" means the median income for Alameda County, California, adjusted for Actual Household Size, as determined pursuant to California Tax Credit Allocation (“TCAC”) regulations.
“City’s Authorized Representative” means the City Manager of the City of Livermore or his/her designee.
“City Documents” means collectively, this Agreement, the City Acquisition Loan Agreement, the City Notes, the City Deeds of Trust, and the Restated Regulatory Agreement, as amended.
“Claims ” is defined in Section 2.10.
“City Development Deed of Trust” is defined in Recital E. “City Acquisition Deed of Trust” is defined in Recital C. “City Acquisition Loan” is defined in Recital B.
“City Acquisition Note” is defined in Recital C.
“City Deeds of Trust ” is defined as that City Predevelopment Deed of Trust, City Development Deed of Trust, and City Acquisition Deed of Trust. “City Notes” is defined as the City Third Restated Predevelopment Note, City Acquisition Loan Note, and City Development Loan Note.
“City Development Loan” is defined in Recital D.
“Eligible Household” means a household for which gross household income upon initial occupancy does not exceed the maximum income level for a Restricted Unit as specified in Section 2.3 and Exhibit B.
“Indemnitees” is defined in Section 2.10.
“Livermore Homeless Client” is defined as a person/applicant household who has been verified as homeless and is receiving services from City-approved agencies/programs within the incorporated city limits.
“Marketing and Tenant Selection Plan” is defined in Section 6.5. “City Predevelopment Deed of Trust” is defined in Recital D.

EXHIBIT B
252

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“Rent” means the total of monthly payments by the Tenant of a Unit for the following:
use and occupancy of the Unit and land and associated facilities, including parking; any separately charged fees or service charges assessed by Owner that are customarily charged in rental housing and 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 Owner, and paid by the Tenant.
“Rent Restricted” means limited to an Affordable Rent. “Residential Project” means an affordable housing development on the Property consisting of up to 24 apartments (up to 23 affordable apartments and one unrestricted manager’s unit) targeted to persons who are formerly homeless with related improvements supporting the residences.
"Restricted Unit" means a dwelling unit that is restricted by the City pursuant to this Agreement pursuant to Section 2.1 and 2.3.
“Project” is defined in Recital B.
"Tenant" means a household legally occupying a Unit pursuant to a valid lease with Owner.
"Unit" means one of the twenty-four (24) units in the Project, including the manager's unit.

1.2 Exhibits. The following Exhibits are attached hereto and incorporated into this Agreement by this reference:

A Legal Description of Property
B Number of Restricted Units by Unit Size and Targeted Area Median Income Rent Limits (AMI) by Unit Size.

C Insurance Requirements
D Form of Annual Report

EXHIBIT B
253

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2.1 Livermore Homeless Program Units. To the extent permitted by law and consistent with the program regulations for funding sources used for development of the Residential Project, including Alameda County A1 Bond funds, throughout the Term of this Agreement and subject to Section 2.9 herein, Owner agrees to exercise a preference for the Restricted Units which shall first be marketed to and occupied by clients referred through an agency or agencies participating in homeless programs supported and approved by the City (such clients are “Livermore Homeless Clients” and such units are "Homeless Units"). To the extent a Homeless Unit remains unoccupied for a period of thirty (30) days due to the fact that a Livermore Homeless Client tenant has not been identified, then Owner may rent such Homeless Unit to any otherwise qualifying tenant, provided, however, that the next available unit shall be offered to a Livermore Homeless Client and made available as a Homeless Unit. The Livermore Homeless Client referral procedures may be established by separate Memorandum of Understanding approved by the City Manager, and the Homeless Unit selection policies shall be incorporated into the general tenant selection policies described in Section 6.5.

2.2 Supportive Services for Homeless Units. Throughout the Term of this Agreement, Owner agrees to complete a needs assessment and service plan for each Homeless Unit occupant, and to provide onsite access to financial literacy, computer literacy, life-skills development, housing stability support, recreational, educational and community activities, conflict resolution and mediation, substance abuse treatment and health education programs. To the extent the on- site services are insufficient to meet the applicable service plan, then Owner will provide requisite referrals to additional off-site services.

Notwithstanding anything to the contrary contained in this Agreement, if other Project lenders, Project investors, or regulatory agencies restrict a greater number of units than restricted by this Agreement or require stricter household income eligibility or affordability requirements than those imposed hereby, the requirements of such other lenders, investors or regulatory agencies shall prevail, including without limitation, the rent and occupancy requirements imposed in connection with the use of rent subsidies.

EXHIBIT B
254

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2.4 Rents for Restricted Units. For all Restricted Units rents shall be limited to Affordable Rents for households of the applicable income limit and presumed household size in accordance with Section 2.3 and Exhibit B. A household which at initial occupancy qualifies in a particular income category shall be treated as continuing to be of such income category so long as the household’s gross income does not exceed one hundred forty percent (140%) of the applicable income limit.
a) For the purpose of determining whether a household is an Eligible Household, gross household income shall be determined in accordance with TCAC regulations and federal regul ations applicable to low-income housing tax credits. In the event that TCAC no longer publishes the income and rent information that this Agreement contemplates that TCAC will publish, respectively, the City shall provide Owner with other income and rent determinations which are reasonably similar with respect to methods of calculation to those previously published by TCAC, as applicable.
b) Subject to Section 2.3, if, upon recertification of the income of a tenant of a Restricted Unit, Owner determines that a Tenant of a Restricted Unit has an income exceeding the maximum qualifying income for a 30% AMI Household, such Tenant shall be permitted to continue occupying the Restricted Unit and upon sixty (60) days written notice, the Rent may be increased to one-twelfth (1/12th) of thirty percent (30%) of the actual adjusted income of the Tenant or the current fair market rent for that unit, whichever is less, and Owner shall rent the next available Unit of the appropriate size to a 30% AMI Household at a Rent not exceeding the maximum Rent specified in this Section, or designate another Unit in the Residential Project with a 30% AMI household as a 30% Unit, at a Rent not exceeding the maximum Rent specified in this Section.
c) Initial Rents are subject to City approval. Rents may not be increased more often than once every twelve (12) months and by no more than five percent (5%) per year. Owner shall provide each Tenant with at least sixty (60) days written notice of any increase in Rent applicable to such Tenant. Owner shall comply with California rent control laws and tenant notification. If there are any overlaps between this Agreement and the law, the more restrictive limits and noticing requirements shall govern.

2.5 Loss of Subsidy. It is anticipated that certain Units in the Development (the "Subsidy Units") will receive Project-Based Section 8 or other rental subsidies (the "Rental Subsidy") throughout the Term, as reflected in the Financing Plan for the Project. If any change in federal law occurs, or any action (or inaction) by Congress or any federal or state agency occurs, which results in a material reduction, termination or nonrenewal of the Rental Subsidy through no fault of the Owner, such that the Rental Subsidy shown on the Finance Plan for the Development approved by the City is no longer available, Owner shall, in anticipation of such loss in Rental Subsidy, use good faith efforts for a period of ninety (90) days, to identify and obtain alternative sources of rental subsidies and shall provide the City progress reports on Owner's efforts to identify and obtain alternative sources of rental subsidies. If at the end of such ninety (90) day period Owner is unable to secure an alternate source of rental subsidy, notwithstanding Section 2.4, Owner may increase the rent on one or more of the City Restricted Units that overlap with a Subsidy

EXHIBIT B
255

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Unit, up to sixty percent (60%) of AMI (“TCAC Maximum Rent Limit”), subject to the following requirements:
a. Any such rent increase must be pursuant to a transition plan approved by the City showing how the rent increase will be implemented, and which Restricted Units will be subject to the increase, and, if applicable, be consistent with remedial measures set forth in California Code of Regulations Title 4, Division 17, Chapter 1, Section 10337(a)(3) or successor regulation applicable to California's Federal and State Low Income Housing Tax Credit Program; b. At the time Owner requests an increase in the Restricted Unit rent, Owner shall provide the City with a copy of the proposed Annual Operating Budget showing the impact of the loss or reduction of the Rental Subsidy;
c. Any subsequent rent increases remain subject to Section 2.4 above; and, d. The number of Restricted Units subject to the rent increase and the level of rent increase may not be greater than the amount required to ensure that the Residential Project generates sufficient income to cover its operating costs and debt service as shown on the Annual Operating Budget, and as is necessary to maintain the financial stability of the Development.
e. Owner must maintain, at a minimum, the affordability levels required by the density bonus provided under Livermore Development Code section 6.02.030. f. Upon receipt of any alternative rental subsidies, Owner shall reduce the rents on the Restricted Units back to the Affordable Rent, to the extent that the alternative rental subsidies provide sufficient income to cover the operating costs and debt service of the Development as shown on the Annual Operating Budget.

2.6 Rent Increases on Foreclosure.

EXHIBIT B
256

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c. The rent increase may occur only at the time of renewal of the term of the lease of an existing Tenant or the time of leasing a Restricted Unit to a new tenant. Any subsequent rent increases remain subject to Section 2.3 above. d. Owner must maintain, at a minimum, the affordability levels required by the density bonus provided under Livermore Development Code section 6.02.030.

2.9 Nondiscrimination; Compliance with Fair Housing Laws.

(a) (1) In Deeds, the following language shall appear:

“Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against

EXHIBIT B
257

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or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.”

(b) (1) In Leases, the following language shall appear:

(c) In Contracts pertaining to management of the Residential Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:

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pursuant to any applicable relocation laws shall be paid by Owner, and City shall have no responsibility for payment therefor. Owner shall be liable for any and all claims for applicable relocation benefits sought by any current, former or future tenant of the Residential Project.

3. Tenant Income Certifications; Reporting Requirements; Access to Information; Inspections.

3.1 Tenant Income Certification. Owner or Owner’s authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, a written certificate containing all of the following in such format and with such supporting documentation as City may reasonably require:
(i) The identity of each household member;
(ii) The total gross household income (as determined pursuant to Section 2.3); and

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Owner shall retain such certificates for not less than five (5) years, and upon City’s request, shall provide copies of such certificates to City and make the originals available for City inspection.

In addition to the information described above, the Annual Report shall include the following:
(i) A Residential Project income and expense statement for the reporting period;

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(vi) City may, from time to time request additional or different information, and Owner shall promptly supply such information in the reports required hereunder.

3.3. Maintenance of Records.

3.3.2 Records must be kept accurate and up-to-date. City shall notify Owner of any records it deems insufficient. Owner shall have fifteen (15) calendar days from such notice to correct any specified deficiency in the records, or, if more than fifteen (15) days shall be reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within fifteen (15) days and diligently pursue the correction of the deficiency as soon as reasonably possible.

3.4 Access to Records; Inspections.

4. Term of Agreement.

4.1 Term of Restrictions. This Agreement shall remain in effect until the fifty-fifth (55th) anniversary of the City’s issuance of a final certificate of occupancy for the Project.

5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this

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Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the tenants of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby. Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City.

6. Property Management; Repair and Maintenance; Marketing.

6.1 Management Responsibilities. Owner shall be responsible for all management functions with respect to the Property and the Residential Project, including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. City shall have no responsibility for management or maintenance of the Property or the Residential Project.

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6.2 Management Entity and Replacement of Management Agent. City shall have the right to review and approve the qualifications of the management entity proposed by Owner for the Residential Project, and shall have the right to review and approve any agreement executed between Owner and the management entity, which approval shall not be unreasonably withheld. The contracting of management services to a management entity shall not relieve Owner of its primary responsibility for proper performance of management duties.

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maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 10% per annum or the highest rate permitted by applicable law.

(d) A requirement that eligible applicants be notified of eligibility and, when possible, be provided an estimate regarding when a unit may be available;

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(e) A requirement that ineligible applicants be notified of the reason for their ineligibility;

(f) Specific procedures through which applicants deemed to be ineligible may appeal this determination;

(h) Specific procedures for obtaining documentation regarding prospective tenants’ incomes, as necessary, to certify that such income does not exceed income limits;

(i) Specific procedures for certification and recertification of household incomes and procedures for handling over-income tenants;

(j) A requirement that a written rental agreement (subject to City approval) be executed with each eligible household selected to occupy a unit;

(k) Such other requirements and criteria/procedures as City may determine appropriate.

6.6 Residential Lease Provisions. No later than four (4) months prior to the date construction of the Project is projected to be complete, Owner shall submit to the City Owner’s proposed form of residential lease agreement for the City's review and approval. The form of lease must comply with all requirements of this Agreement, the other Loan Documents and must, among other matters:
a) Provide for termination of the lease and consent by the Tenant to immediate eviction for failure: (i) to provide any information required under this Agreement or reasonably requested by Owner to establish or recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy in the Residential Project in accordance with the standards set forth in this Agreement, or (ii) to qualify as a 30% or 50% AMI household, as applicable, as a result of any material misrepresentation made by such Tenant with respect to the income computation. b) Be for an initial term of not less than one (1) year, unless by mutual agreement between the Tenant and Owner, and provide for no increase in Rent during such year. After the initial year of tenancy, the lease may be month-to-month by mutual agreement of Owner and the Tenant. Notwithstanding the above, any Rent increases shall be subject to the requirements of Section 2.4.
c) Include a provision which shall require a Tenant who is residing in a Restricted Unit made accessible pursuant to Section 5.10 of the Loan Agreement and who is not in need of an accessible unit to move to a non-accessible unit when a non-

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accessible unit becomes available and another Tenant or prospective Tenant is in need of an accessible unit.
d) Include any provisions necessary to comply with the requirements of the Violence Against Women Reauthorization Act of 2013 (Pub. L. 113–4, 127 Stat. 54) applicable to HUD-funded programs.5) Any termination of a lease or refusal to renew a lease for a Restricted Unit within the Development must be preceded by not less than sixty (60) days written notice to the Tenant by Owner specifying the grounds for the action.6) Include a detailed listing of reasonable rules of conduct and occupancy which shall be in writing, shall be consistent with federal and state law, and shall be provided to each tenant upon occupancy;
7) Include a requirement that there be no storage on balconies and patios and that tenants must keep all balconies, patios and other exterior areas neat, clean and clutter free, including no clotheslines or laundry.

6.8 Resident Services Plan and Budget.
a) No later than six (6) months prior to the projected date of the completion of the Project, Owner shall submit to the City a plan for providing supportive services to the Tenants (the "Resident Services Plan") and a budget for providing those services (the "Resident Services Budget") for the initial year of operation of the Residential Project. The Resident Services Plan must identify service provider(s) and staffing levels, and describe the services provided. The Resident Services Plan must include copies of contracts and/or memoranda of understanding for the provision of services by service providers, along with any annual compliance certifications.

The Resident Services Budget must state the dollar value of the services, and the funding source(s) for the services (cash or in-kind).
b) Upon receipt by the City of the proposed Resident Services Plan and Resident Services Budget, the City shall promptly review the same and approve or disapprove it within fifteen (15) days, provided that such approval shall not be unreasonably denied. If the Resident Services Plan and/or Resident Services Budget are not approved by the City, the City shall set forth in writing and notify Owner of the City's reasons for withholding such approval, which may include a request by the City for a change in the nature or scope of resident services or a change in service provider. Owner shall, within fifteen (15) days thereafter, submit a revised Resident Services Plan and/or Resident Services Budget for City approval in accordance with this subsection. If the City does not approve the revised Resident Service Plan, Owner shall be in Default hereunder.
c) Owner shall thereafter submit to the City annual updates to the Resident Services

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Plan and Resident Services Budget by October 1st of each year of operation of the Development, identifying any changes made to the previously approved Resident Services Plan and Resident Services Budget. Any revisions to the Resident Services Plan and Resident Services Budget shall be subject to the City's review and approval and the process for timing and review of such revisions shall be subject to the process identified in Section 6.7.

6.11 Property Damage or Destruction. If any part of the Residential Project is damaged or destroyed, Owner shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced as soon as reasonably practicable after the damage or loss occurs and shall be completed within one year thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible. During such time that lenders or low-income housing tax credit investors providing financing for the Project impose requirements that differ from the requirements of this Section the requirements of such lenders and investors shall prevail.

8. Transfer and Encumbrance.

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prior to the expiration of the term of this Agreement, except as expressly permitted by this Agreement or the Loan Agreement, Owner shall not undergo any significant change of ownership without the prior written approval of City. For purposes of this Agreement, a “significant change of ownership” shall mean a transfer of the beneficial interest of more than twenty-five percent (25%) in aggregate of the present ownership and /or control of Owner, taking all transfers into account on a cumulative basis; provided however, neither the admission of an investor limited partner, nor the transfer by the investor limited partner to subsequent limited partners shall be restricted by this provision.

8.3 Requirements for Proposed Transfers. The City may, in the exercise of its sole discretion, consent to a proposed Transfer of this Agreement, the Property, the Improvements or part thereof if all of the following requirements are met (provided however, the requirements of this Section 8.3 shall not apply to Transfers described in clauses (i), (ii), (iii) and (v) of Section

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(iv) Except in the case of partnership interest Transfers, the Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records.
(v) Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the City’s Authorized Representative, in his or her discretion, refers the matter of approval to the City Council. If the City has not rejected a proposed Transfer or requested additional information regarding a proposed Transfer in writing within forty-five (45) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.

8.6 Encumbrances. Owner agrees to use good faith commercially reasonable efforts to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property, the Project or part thereof in accordance with Section

Owner agrees to provide to City a copy of any notice of default Owner receives from any Third- Party Lender within five (5) business days following Owner’s receipt thereof.

8.7 Mortgagee Protection. No violation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon

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all or any portion of the Project or the Property, and the purchaser at any trustee’s sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred.

9. Default and Remedies.

9.2 Remedies. Upon the occurrence of an Event of Default and its continuation beyond any applicable cure period, City may proceed with any of the following remedies:

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10.1 Terms Applicable to Indemnity Provisions. The terms set forth in this Section

10.1 shall apply to all provisions of this Agreement that pertain to Owner’s obligations to indemnify City and the other Indemnitees, including without limitation, Sections 2.10 and 10.

In connection with each such provision, all of the following shall apply:

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the City Documents limiting City’s recourse to property securing the Secured Obligations (as defined in the Deed of Trust, or limiting the personal liability of Owner, or any other party for payment of all or any part of the indebtedness evidenced by the Note; (iv) the accuracy or inaccuracy of any representation and warranty made by Owner under this Agreement or by Owner or any other party under any City Document, (v) the release of Owner or any other person, by City or by operation of law, from performance of any obligation under any City Document; (vi) the release or substitution in whole or in part of any security for repayment of the indebtedness evidenced by the Note; and (vii) City’s failure to properly perfect any lien or security interest given as security for repayment of the indebtedness evidenced by the Note.

11. Miscellaneous.

11.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties.

11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Owner of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election.

City : City of Livermore
1052 S. Livermore Avenue
Livermore, CA 94550
Attention: City Manager

Owner: Tri Valley BMR LLC
c/o Housing Consortium of the East Bay
410 7 th Street, Suite 203

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Oakland, CA 94607
Attention: Darin Lounds, Executive Director

11.4 Notice of Expiration of Term.

11.6 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship.

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11.10 Time is of the Essence. Time is of the essence in the performance of this Agreement.

11.12 Attorneys' Fees and Costs. If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action.

11.13 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.

11.15 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement.

SIGNATURES ON FOLLOWING PAGE(S).

EXHIBIT B
274

27 IN WITNESS WHEREOF, the Parties have executed this Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants as of the date first written above.

CITY:

CITY OF LIVERMORE, a California municipal corporation

By:_______________________________

Print Name: Marc Roberts

Title:_City Manager

ATTEST:

By:__________________________

APPROVED AS TO FORM:

_____________________________
Assistant City Attorney

OWNER:

TRI VALLEY BMR, LLC,
a California limited liability company

By: Housing Consortium of the East Bay
a California nonprofit public benefit corporation,
its sole member and manager

By: _________________________
Darin Lounds
Executive Director

SIGNATURES MUST BE NOTARIZED.

EXHIBIT B
275

28 ACKNOWLEDGMENT

State of California )
) ss
County of _ __________ )

On , before me, ___________, Notary Public_______________, (Name of Notary)

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

(Notary Signature)

A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.

EXHIBIT B
276

29 ACKNOWLEDGMENT

State of California )
) ss
County of ___________ )

On , before me,___________________________________________, (Name of Notary)

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

EXHIBIT B
277

30 Exhibit A

LEGAL DESCRIPTION OF THE PROPERTY

(Legal Description Attached)

EXHIBIT B
278

Page 1 of 1 ends

ORDER NO. : 1117018101

EXHIBIT A
The land referred to is situated in the County of Alameda, City of Livermore, State of California, and is described as follows:

Beginning at the Southwest corner of said Block 26; thence from said point of beginning North 20° 30' West, 250.00 feet; thence North 69° 30' East, 100.00 feet; thence South 20° 30' East,

50.00 feet; thence North 69° 30' East 100.00 feet; thence South 20° 30' East 100.00 feet; thence South 69° 30' West, 100.00 feet; thence South 20° 30' West, 100.00 feet to the point of beginning.

APN: 098-0240-001-17

EXHIBIT B
279

31 Exhibit B

Number of Units by Unit Size and Targeted Area Median Income Rent Limits (AMI) by Unit Size

Unit
Type

Number of City-
Restricted Units by
Category
Number of Other
Affordable Units
by Category

Manager Unit

Total

Household
Size for
Purpose of
Establishing
Rent Limit
Maximum
Household
Size
15% 30% 15% 30%
Studio
11 6 1 - 18 1 2
1-BR

5 - 5 2 3
2-BR

1 1

Total

11 11 1 1 24

EXHIBIT B
280

32 Exhibit C

Insurance Requirements

(Insurance Requirements Attached)

EXHIBIT B
281
Revised 2/21/17 B27 - Loan Agreement

Page 1 ends

EXHIBIT C

INSURANCE REQUIREMENTS

Minimum Scope and Limits of Insurance
Developer/Contractor shall maintain limits no less than:

2. Builders’ Risk (also known as Course of Construction). Limit should be the same as total contract costs, including soft costs and business interruption.

The City of Livermore shall be endorsed as Loss Payee.

3. Automobile Liability:
$1,000,000 per accident for bodily injury and property damage.

4. Workers’ Compensation and Employer's Liability:

5. Property. Developer is required to obtain and maintain property insurance coverage to cover full replacement value, to include improvements, and shall be written on an All Risk basis with a maximum deductible of $1,000 per property. The Property Insurance policy will also include a provision that protects the location and the City’s interest if the Property is vacant and/or unoccupied for more than thirty (30) days. Developer’s policy must also include a business interruption provision to cover loan payments for twelve (12) to twenty-four (24) months if the property is damaged and cannot be sold or occupied. Additionally, the City must also be named as a Loss Payee by endorsement such as 438 BFU NS or similar.

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282
Revised 2/21/17 B27 - Loan Agreement

Page 2 ends

Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:

4. The Developer’s/Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.

7. Certificate Holder section of the insurance certificate should read: City of Livermore, 1052 S. Livermore Avenue, Livermore, CA 94550

EXHIBIT B
283

33 Exhibit D

Form of Annual Report

(Form of Annual Report Attached)

EXHIBIT B
284

EXHIBIT B
285

EXHIBIT B
286
Soc
ial & Human Service Facility Fee (Capital) Page 1
Rev. 05/2021

AGREEMENT BETWEEN CITY OF LIVERMORE
AND

TRI VALLEY BMR, LLC
FOR FISCAL YEAR 2021-22

SOCIAL AND HUMAN SERVICE FACILITY FEE
(Capital)
THIS AGREEMENT, entered into this ____ day of ____________, 2021 (the " Effective Date"), between the City of Livermore, a municipal corporation ("City"), and Tri Valley BMR, LLC, a California limited liability company ("Recipient"), whose sole member is Housing Consortium of the East Bay, a California nonprofit public benefit corporation.

RECITALS
City has assessed the social and human service network in the City of Livermore and collects human service facility fees pursuant to Chapter 12.70 Social and Human Service Facility Fee of the Livermore Municipal Code. These fees are deposited in a Human Service Facility Fee Fund and are to be used consistent with Section 12.70.060 of the Livermore Municipal Code to provide additional facilities to mitigate the increased need for social and human service facilities.

Recipient is the owner of the property located at 460 North Livermore Avenue (the “Property”). The Property will be developed by the Recipient for a project that will:
(1) prov
ide services and 23 affordable housing units to serve extremely low-income households experiencing or at risk of experiencing homelessness in Livermore, plus one onsite manager’s unit; (2) a resource center (including a multi-purpose assembly space that will also serve as a dining space) that will serve low-income individuals and people experiencing or at risk of experiencing homelessness; , and (3) a commercial kitchen that will serve low-income individuals and people experiencing or at risk of experiencing homelessness (collectively, th e
"P
roject") ; each of the foregoing to be funded through a variety of City, County of Alameda, State of California, and private funding sources targeted to support the residential and commercial components. The commercial component consists of the resource center (including a multi-purpose assembly space that will also serve as a dining space) and the commercia l
kitchen
(the “Services Project”).

City wishes to engage Recipient in utilizing a portion of the Social and Human Service Facility Fee funds in the amount of $ $1,620,135 (the "Funds") to provide services to Livermore residents that meet the requirements described in section 12.70.060 of the Livermore Municipal Code.

City and Recipient understand that the Funds awarded from the City shall satisfy the Social and Human Service Facility Fee objectives described in the City’s ordinances.

In accordance with the National Environmental Policy Act of 1969, as amended (42 USC 4321-4347) (“NEPA”), the City of Livermore has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement.

Concurrently with the execution of this Agreement, Recipient will execute, and deliver to City, and as applicable, cause to be recorded in the Official Records a Services Facility

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287

Social & Human Service Facility Fee (Capital) Page 2
Rev. 05/2021
Regulatory Agreement and Declaration of Restrictive Covenants (the “Regulatory Agreement”) that will regulate and restrict the Services Project for the benefit of low-income community members in a manner that meets the requirements described in section 3.26.060 of the Livermore Municipal Code and set forth the use and maintenance of the resource center, food service kitchen and community dining space for a term of not less than fifty-five (55) years. The Regulatory Agreement is attached as Exhibit A.

A Notice of Exemption finding that the Project is Categorically Exempt from the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) (“CEQA”) per CEQA Guidelines Section 15332 was filed with the Alameda County Clerk on May 12, 2020.

AGREEMENT

NOW THEREFORE, City and Recipient hereby agree that the aforementioned recitals are true and correct, and in recognition of the mutual consideration provided herein, further agree as follows:

1. Relationship of Parties – Independent Contractors. The relationship of the parties shall be that of independent contractors. Recipient and its employees are not City officers or employees. Recipient is responsible for the supervision and management of its employees, including any workers compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the performance of the Activities contemplated by this Agreement.

2. Scope of Service.

A. Activities. Recipient is responsible for administering the Funds awarded in a manner satisfactory to City as outlined in this Scope of Service. Recipient shall also be responsible for the supplemental terms and conditions contained in Exhibit “B” Scope of Work.

i. Project Overview: Develop a Project at the Property providing housing and services for people experiencing homelessness in Livermore.

ii. Service Objective. Construct the Services Project (the “Activities”).

iii. General Administration. The Funds for the Activities are to be administered under the direction of the Recipient.

B. Budget. City will grant, and Recipient will use, the Funds awarded under the budget terms set forth in Exhibit “B-1”, to perform the Activities consistent with the terms and conditions of this Agreement and any conditions imposed upon the Project.

C. Performance Monitoring - City will monitor Recipient’s performance against the objective outlined in Section 2A(ii). Substandard performance as determined by the City will constitute non-compliance with this agreement.

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Social & Human Service Facility Fee (Capital) Page 3
Rev. 05/2021

3. Time for Performance. Recipient shall draw funds for eligible Activities during a period commencing on the Effective Date, and continuing through December 31, 2024.

4. Time for Restricted Use. Recipient shall restrict the use of the Property as described in Exhibit A until 55 years after the issuance of a final Certificate of Occupancy by the City for the Project.

5. Payment. It is expressly agreed and understood that the total amount available from City to Recipient for the Activities under this Agreement shall not exceed the amount of $1,620,135 under the budget terms set forth in Exhibit “B-1”. Recipient shall only be entitled to draw that portion of the Funds commensurate with the Activities provided, and only for payment of eligible expenses which have been properly documented by Recipient and approved by City. City shall only make payments for those Activities that comply with the terms and conditions of this Agreement.

Payments of eligible expenses shall be made from the Funds and in accordance with the terms and conditions of this Agreement. City shall pay to Recipient Funds available under this Agreement based upon information submitted by Recipient, and consistent with any approved budget and City policy concerning payments. Payments will be made for eligible expenses actually incurred by Recipient.

6. Administrative, Documentation and Recordkeeping Requirements.

A. Records to be Maintained - Recipient shall maintain records pertinent to the Activities as required under the Regulatory Agreement.

B. Retention - Recipient shall retain all records pertinent to expenditures incurred in the performance of the Activities under this Agreement, including records for non-expendable property acquired with funds and records for any displaced person, for a period of 5 years after the City’s issuance of a Certificate of Occupancy for the Project.

C. Financial Management. Recipient shall adhere to the generally accepted accounting principles, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred.

D. Audits and Inspections - All Recipient records with respect to any matters covered by this Agreement shall be made available to City, grantor agency, or their designees at any time during normal business hours with 48-hours’ notice, as often as City or grantor agency deems necessary, to audit, examine, and make excerpts or transcripts of all relevant data.

Any deficiencies noted in audit reports must be corrected by Recipient within 30 days after receipt of notice of deficiency to Recipient, or if the nature of any such deficiency is such that it cannot be cured within thirty (30) days. Recipient’s failure to commence to cure the deficiency within thirty (30) days and thereafter prosecute the curing of such deficiency with due diligence and in good faith to completion, provided that Recipient’s due diligence and good faith shall be

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Social & Human Service Facility Fee (Capital) Page 4
Rev. 05/2021
determined in the City’s reasonable discretion and shall be demonstrated through efforts reported to the City no less frequently than monthly following the notice of deficiency, but in no event longer than 180 days from receipt of the notice of deficiency. Failure of Recipient to comply with the above audit requirements will constitute a violation of this Agreement and constitute cause for termination pursuant to Section 11A Termination for Cause.

7. Suspension, Termination, Return of Funds.

A. Termination for Cause. City may suspend or terminate this Agreement if Recipient fails to comply with any term or condition of this Agreement following written notice from the City to Recipient an opportunity to cure as provided in this Section 7, including but not limited to, the following:

I. Failure to comply with any of the rules, regulations or provision referred to herein, or such statutes, regulations, policies or directives as may become applicable at any time;

II. Failure, for any reason within the control of Recipient, of Recipient to fulfill in a timely and proper manner its obligation under this Agreement;

III. Failure, for any reason within the control of Recipient, of Recipient to operate the Services Project as required in the Services Facility Regulatory Agreement.

IV. Improper use of the Funds provided; or

V. Submission by Recipient to City reports that are incorrect or incomplete in any material respect.

City shall give Recipient written notice of any failure to comply with the Agreement. Recipient shall have thirty (30) calendar days from such notice to correct any specified deficiency in the records, or, if more than thirty (30) days shall be reasonably necessary to correct the deficiency, Recipient’s will commence to cure the deficiency within thirty (30) days and thereafter prosecute the curing of such deficiency with due diligence and in good faith to completion, provided that Recipient’s due diligence and good faith shall be determined in the City’s reasonable discretion and shall be demonstrated through efforts reported to the City no less frequently than monthly following the notice of deficiency, but in no event longer than 180 days from receipt of the notice of deficiency. If Recipient does not remedy, or diligently pursue remedy of, the non-compliance as reasonably determined by the City, City may exercise any of the remedies available under law and equity including those set forth in this Section 7 of this Agreement.

Pending correction of the non-compliance, City shall withhold funds requested for any payment identified in the notice of non-compliance, until such time as Recipient corrects the non- compliance or is otherwise found to be in compliance by City.

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Social & Human Service Facility Fee (Capital) Page 5
Rev. 05/2021

8. Reversion of Assets.

A. Recipient shall transfer to City any funds on hand and any account receivable each in a the portion attributable to the use of the Funds at the time of termination of this Agreement for cause pursuant to Section 7 above;

B. Real property under Recipient’s control that was acquired or improved in whole or in part with City funds shall be used according to the restrictions outlined in the Regulatory Agreement until 55 years after the issuance of a final Certificate of Occupancy for the Project. If Recipient fails to use the real property in a manner consistent with the Regulatory Agreement for the prescribed period of time, Recipient shall pay City an amount equal to the fair market value of the property as of the Effective Date less any portion of the values attributable to the expenditure of funds other than the Funds for the construction of, or improvement to, the property. This provision shall continue until the end of the Time for Restricted Use described in Section 4 of this Agreement.

C. In all cases in which equipment or real property acquired, in whole or in part, with the funds is later sold, the proceeds shall be returned to the City (prorated to reflect the amount of the Funds that were used to acquire the equipment or real property).

Equipment and real property acquired with the Funds, but not required by Recipient for Activities under this Agreement shall be (1) transferred to City or (2) retained after compensating City in an amount equal to the current fair market value of the equipment less the percentage of funds other than the Funds used to acquire the equipment or real property.

9. Remedies. If Recipient materially fails to comply with the terms and conditions of this Agreement, subject to Section 7, above, the City may take one or more of the following actions, as appropriate in the circumstances:

1. Temporarily withhold cash payments pending correction of the deficiency by the Recipient as more particularly described in Section 7.

2. Disallow (deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.

3. Wholly or partly suspend or terminate the current award, as more particularly described in Section 7.

4. Withhold further new or uncommitted awards for the Project or Recipient.

5. Pursue any other remedy allowed under the City Documents or at law or in equity.

10. Prevailing Wage. If applicable, Recipient shall ensure that all work for compensation is

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Social & Human Service Facility Fee (Capital) Page 6
Rev. 05/2021
taken in compliance with the requirements of the California Labor Code including but not limited to hours of labor, nondiscrimination, payroll records, apprentices, worker’s compensation and prevailing wages. If applicable, Recipient shall comply with all prevailing wage laws, such as section 1773, 1773.8, 1775, 1776, 1777.5, 1777.6, and 1813 of the California Labor Code and any other applicable wage and hour law. If any violation of prevailing wage law associated with this Agreement is deemed to have occurred by any court or administrative authority, Recipient shall forfeit to the City, as a penalty, the sum of fifty dollars ($50.00) for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the applicable prevailing rates for any work done to accomplish the purposes of this Agreement.

11. Federal Wage Requirements. If Federal wage requirements from the Davis-Bacon Act apply to the project, the Recipient shall include the federal wage checklist and wage determination as an exhibit to the Recipient's contract with the general contractor that is hired to perform the work. Recipient shall confirm with City staff regarding the actual federal wage decision applicable to Recipient’s project prior to starting the bid advertisement process for the project.

12. Hold Harmless and Indemnity. Recipient shall defend, indemnify and hold City, its elected officials, officers, directors, employees, agents, and designated volunteers harmless from and against any and all loss, liability, damage, claims, and lawsuits including but not limited to reasonable attorney, consultant and expert fees, and court costs, arising out of or in connection with this Agreement, except for the gross negligence and willful misconduct of City, its elected officials, officers, directors, employees, agents, and designated volunteers.

13. Insurance. Recipient shall procure and maintain insurance during the term of this Agreement in the amounts and under the terms set forth in Exhibit “C” against claims that may arise from or in connection with this Agreement and performance of the Activities. Upon reasonable written notice, Recipient shall comply with any changes in the amounts and terms of insurance as may be required from time-to-time by the City’s Risk Manager.

14. Copyright and Right of Use. All items created by Recipient under this Agreement are works made for hire, and Recipient shall give City the copyright and all intellectual property rights to all items developed, prepared, and delivered by Recipient as part of the Activities.

15. Notices. Any notice required or permitted under the terms of this Agreement shall be effective upon receipt in writing either by personal service upon the authorized agent for the party, or by mailing the notice via U.S. Mail to the party as follows:

City: City of Livermore
Attn: Human Services Program Manager
1052 S. Livermore Avenue
Livermore, California 94550

Recipient: Tri Valley BMR, LLC
c/o Housing Consortium of the East Bay
Attn: Darin Lounds

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Social & Human Service Facility Fee (Capital) Page 7
Rev. 05/2021
4 1 0 7 th Street
Oakland, CA 94607

16. Environmental Review. Recipient understands that if applicable the City Council does not officially allocate funding until the Environmental Review (ER) is completed by City Staff and a finding of no significant impact (“FONSI”) is issued. Recipient shall not commence work on the proposed project until the environmental review has been completed. A copy of the Environmental Review is contained within the Environmental Review file and is made a part of this contract by reference. The Project is Categorically Exempt from the California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) (“CEQA”) per CEQA Guidelines Section 15332.

17. Severability. If any provision of this Agreement is held invalid, the remainder of the Agreement shall not be affected thereby, and all other parts of this Agreement shall nevertheless be in full force and effect.

18. Waiver. City’s failure to act with respect to a breach by Recipient does not waive its right to act with respect to subsequent or similar breaches. The failure of City to exercise or enforce any right or provision shall not constitute a waiver of such right or provision.

19. Construction of Language. The terms and conditions in this Agreement have been arrived at through negotiation and each party had a full and fair opportunity to review and revise this Agreement with legal counsel. Any ambiguity in this Agreement will not be resolved against either party as the drafting party. This Agreement is comprised of the following documents: this Agreement, including but not limited to: Exhibit A Services Facility Regulatory Agreement and Declaration of Restrictive Covenants, Exhibit B Scope of Work, Exhibit B-1 Financing Plan and Exhibit C Insurance Coverage, Amounts and Terms. In the event of an inconsistency or conflict between the language in the body of the Agreement and an attachment hereto or document incorporated by reference, the language in the body of the Agreement controls.

20. Entire Agreement; Modification. This Agreement supersedes all other agreements, whether oral or written, between the parties with respect to the Activities. Any modification to this Agreement must be in writing and signed by both parties. No amendment may invalidate this Agreement or relieve or release City or Recipient from its obligations under this Agreement.

City may, in its discretion, amend this Agreement in writing to conform with Federal, State, or local laws, regulations, guidelines, or policies related to the use of the Funds for the Activities.

However, if such amendments result in a change in the funding, the scope of services, or the Activities, such modifications shall be incorporated only by written amendment signed by both City and Recipient. In the event the original of this Agreement is lost or destroyed, an archival copy maintained by City may be used in place of the original for all purposes with the same effect as if it was the original.

****************SIGNATURES AND ATTACHMENT LIST ON NEXT PAGE****************

IN WITNESS THEREOF, the Recipient and City have executed this Agreement as of the date first written above.

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Social & Human Service Facility Fee (Capital) Page 8
Rev. 05/2021
RECIPIENT DATED: _______________
“Recipient”

TRI VALLEY BMR, LLC a California limited liability company

By: Housing Consortium of the East Bay
a California nonprofit public benefit corporation,
its sole manager and member

By: _________________________
Darin Lounds
Executive Director

Data Universal Numbering System (DUNS) No.

Central Contractors Registration No.

CITY OF LIVERMORE DATED: _______________
a Municipal Corporation
“City”

BY: __________________________
Marc Roberts
City Manager

APPROVED AS TO FORM:

______________________________

ASSISTANT/CITY ATTORNEY

Attachments:

Exhibit A Services Facility Regulatory Agreement and Declaration of Restrictive Covenants

Exhibit B Scope of Work
Exhibit B-1 Financing Plan
Exhibit C Insurance Requirements

EXHIBIT C
294

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Livermore
1052 S Livermore Avenue
Livermore, CA 94550
Attention: City Clerk

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383

Space above this line for Recorder’s use.

SERVICES FACILITY REGULATORY AGREEMENT

AND

DECLARATION OF RESTRICTIVE COVENANTS

by and between

THE CITY OF LIVERMORE

and

TRI VALLEY BMR, LLC

_____________, 2021

EXHIBIT A

EXHIBIT C
295

Page 2 of 24 ends

This Services Facility Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _________, 2021 (“Effective Date”) by and between the City of Livermore, a municipal corporation (“City”) and Tri Valley BMR, LLC, a California limited liability company (“Owner”). The City and the Owner are collectively referred to herein as the “Parties.”

B. The Property will be developed by the Owner for a project that will provide services and affordable housing units to serve households experiencing or at risk of experiencing homelessness in Livermore (the "Project"). The Project will consist of three new buildings containing 23 apartments for extremely low-income households, an onsite manager’s apartment, a resource center for the neighborhood and individuals who are homeless, and a commercial food service kitchen and assembly space. .

C. City and Owner have entered into an unrecorded Social and Human Service Facility Fee Grant Agreement (the “Grant Agreement”), dated as of ___________, pursuant to which the City agreed to provide a grant utilizing a portion of the City of Livermore Social and Human Service Facility Fee to Owner in the amount of One Million Six Hundred Twenty Thousand One Hundred Thirty Five Dollars ($1,620,135) (the “Grant”) to develop, own, and operate or lease on the Property, a resource center including a multi-purpose assembly space that will also serve as a dining space, and a food services facility with a commercial kitchen, each serving low- income individuals and people experiencing or at risk of experiencing homelessness (the “Services Project”).

D. City and Owner have entered into an unrecorded agreement, dated as of __________, engaging the Owner to assist City in utilizing $1,500,000 in Alameda County Non-Housing Residual Property Taxes (Boomerang Funds) awarded by the Alameda County Board of Supervisors to support the Project.

E. The purpose of this Agreement is to regulate and restrict the Services project for the benefit of low-income individuals and people experiencing homelessness or are at risk of experiencing homelessness and as a social and human services facility for community care consistent with section 12.70.060 of the Livermore Municipal Code and set forth the use and maintenance of the resource center and food services facility. The Parties intend the covenants set forth in this Agreement to run with the land and to be binding upon Owner and Owner’s successors and assigns for the full term of this Agreement.

NOW THEREFORE, in consideration of the foregoing, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows.

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1.1 Definitions; Exhibits. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits. “City’s Authorized Representative” means the City Manager of the City of Livermore or his/her designee.
“City Documents” means collectively this Agreement and the Grant Agreement. “Claims ” is defined in Section 10.
“Grant” is defined in Recital C.
“Grant Agreement” is defined in Recital C.
“Food Services Facility” is defined as a commercial kitchen located on the Property and serving low-income individuals and people experiencing homelessness. “Indemnitees” is defined in Section 10.
“Management Plan” is defined in Section 6.2.
“Project” is defined in Recital B.
“Resource Center” is defined as space on the Property serving low-income individuals and people experiencing homelessness through programs including but not limited to housing referral and counseling services and basic needs, and including offices, meeting rooms, and a multi-purpose assembly space that will also serve as a dining space. “Services Project” is defined in Recital C.
“Tenant” is defined as organizations leasing space in the Services Project to provide services and/or programs to low-income individuals and people experiencing homelessness. “User” is defined as an organization utilizing space (other than under a lease) in the Services Project to provide services and/or programs to low-income individuals and people experiencing homelessness.

1.2 Exhibits. The following Exhibits are attached hereto and incorporated into this Agreement by this reference:

A Legal Description of Property
B Insurance Requirements

2. Use Restrictions. Owner hereby covenants and agrees, for itself and its successors and assigns, that pursuant to this Agreement the Property shall be used solely for the development and operation of the Project, including the Services Project. The Services Project shall be developed and operated in compliance with the Grant Agreement, and the requirements set forth herein. Owner represents and warrants that it has not entered into any agreement that would

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restrict or compromise its ability to comply with the restrictions set forth in this Agreement, and Owner covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City.

2.1 Non-Discrimination. Owner shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Owner covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Owner or any person claiming under or through Owner 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, of, or for the Property or part thereof.

Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith.

All deeds, leases, and contracts pertaining to management of the Services Project, made or entered into by Owner, its successors or assigns, as to any portion of the Property or the Improvements shall contain the following language:

(a) (1) In Deeds, the following language shall appear:

“Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against or segregation of a person or of a group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed nor shall the grantee or any person claiming under or through the grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.”

(b) (1) In Leases, the following language shall appear:

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occupancy, tenure or enjoyment of the property herein leased nor shall the lessee or any person claiming under or through the lessee establish or permit any such practice or practices of discrimination of segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the property herein leased.”

(c) In Contracts pertaining to management of the Services Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:

2.2 Restrictions on religious activities. Organizations providing services on the Property shall not discriminate against a beneficiary or prospective beneficiary on the basis of religion, religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice. If an organization using the Property engages in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), the explicitly religious activities must be offered separately, in time or location, from the programs or activities offered on the Project and participation must be voluntary for the beneficiaries of the Services Project programs or activities. Owner shall include such provision in all deeds, leases, contracts and other instruments executed by Owner, and shall enforce the same diligently and in good faith.

2.3 Disabled Persons Occupancy.
a) Owner shall cause the Services Project to be operated at all times in compliance with all applicable federal, state, and local disabled persons accessibility requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of 1973, (iv) the United States Fair Housing Act, as amended, (v) the Americans With Disabilities Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations, which relate to disabled persons access (collectively, the "Accessibility Requirements"). b) Owner shall indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to the City) the City, and its board members, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Owner's

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failure to comply with the Accessibility Requirements. This obligation to indemnify survives termination of this Agreement, repayment of the City Loans and the reconveyance of the Deeds of Trust.

3. Reporting Requirements; Access to Information; Inspections.

3.1 Annual Report; Inspections. Following completion of construction of the Services Project, by not later than March 1 of each year during the term of this Agreement, Owner shall submit an annual report (“Annual Report”) to the City in form satisfactory to City, together with a certification that the Services Project is in compliance with the requirements of this Agreement. Notwithstanding the Annual report requirements, Owner shall submit to the City an initial lease up report containing the Tenant and User information described in this section. The Annual Report shall, at a minimum, include the following information for the Services Project: (i) total number of Tenants and Users; (ii) name of each Tenant and User; and (iii) total number of clients served by Tenants and Users of the resource center and food services facility, disaggregated by service type, income category, gender, race and ethnicity, and housing status.

Owner shall include with the Annual Report, a copy of each new or amended commercial lease entered into during the reporting period and such additional information as City may reasonably request from time to time in order to demonstrate compliance with this Agreement.

The Annual Report shall conform to the format approved by City.

The Annual Report shall conform to the format requested by City. In addition to the information described above, the Annual Report shall include the following:
(i) A Services Project income and expense statement for the reporting period;

(iii) A report on maintenance and other issues anticipated to affect the current budget needs of the Services Project and the amount expected to be needed for major repairs or other needs during the new fiscal year;

(iv) A financial audit of the books and records of the Services Project prepared in accordance with generally accepted auditing standards by an independent certified public accountant. City may require the audit to be accompanied by a supplemental report prepared in accordance with City’s requirements.

(v) City may, from time-to-time request additional or different information, and Owner shall promptly supply such information in the reports required hereunder.

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3.2. Maintenance of Records.

3.2.1 Owner shall maintain all records regarding the construction of the Services Project for five (5) years after final payment and all other pending matters are closed. Owner shall also maintain tenant leases and other matters related to the leasing and use of the Services Project for a period of five (5) years after the final date of occupancy by the tenant. 3.2.2 Shall maintain all records supporting the information reported in Annual Reports for a period of five (5) years after the Annual Report submission.

3.2.2 Shall maintain all records supporting the information reported in Annual Reports for a period of five (5) years after the Annual Report submission.

3.2.3 Records must be kept accurate and up to date. City shall notify Owner of any records it deems insufficient. Owner shall have thirty (30) calendar days from such notice to correct any specified deficiency in the records, or, if more than thirty (30) days shall be reasonably necessary to correct the deficiency, Owner shall begin to correct the deficiency within thirty (30) days and diligently pursue the correction of the deficiency as soon as reasonably possible.

3.3 Access to Records; Inspections.

3.3.1 Owner shall provide City and its authorized agents and representatives access to any books, documents, papers and records of the Services Project for the purpose of making audits, examinations, excerpts and transcriptions.

3.3.2 With 48-hours’ notice, during normal business hours and as often as may be deemed necessary, City and its authorized agents and representatives shall be permitted access to and the right to examine the Services Project and the Property and to interview Tenants, Users, and employees of the Services Project, for the purpose of verifying compliance with applicable regulations and compliance with the conditions of this Agreement and the other City Documents.

4. Term of Agreement.

4.1 Term of Restrictions. This Agreement shall remain in effect until the fifty-fifth (55th) anniversary of the City’s issuance of a final certificate of occupancy for the Project.

5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby subjects

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its interest in the Property and the Project to the covenants and restrictions set forth in this Agreement. The City and Owner hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Owner and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the tenants of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby. Owner agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City.

6. Property Management; Repair and Maintenance; Marketing.

6.1 Management Responsibilities. Owner shall be responsible for all management functions with respect to the Property and the Services Project, including without limitation the selection of Tenants and Users, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. City shall have no responsibility for management or maintenance of the Property or the Services Project.

6.2 Management Plan and Operating Budget

6.2.1 Owner shall submit its written management policies with respect to the Services Project (the “Management Plan”) to the City for its review and shall amend such policies in any way necessary to ensure that such policies comply with the provisions of this Agreement. The Management Plan shall minimally include the following:
a)A parking management plan which details, among other things, how parking sp aces wil be allocated assigned, and how parking will be managed to encourage Te nants, Users, services providers and guests to use parking in accordance with the plan;
b)Procedures for maintenance and management of the Services Project; c)Procedures for dealing with tenant or neighborhood issues or concerns;

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d)Procedures for maintaining a reserve account, budgeting for maintenance and re pair needs as well as long term rehabilitation needs, determining rents, and handling net cash flow; and
e) Description of services to be provided at the Services Project and staffing levels
f) Procedures for selecting Services Project Tenants and Users g)Such other requirements and criteria/procedures as City may determine appropriate.

Any revisions to the Management Plan shall be subject to the City's review and approval and the process for timing and review of such revisions shall be subject to the process identified in Section 6.8.

6.2.2 No later than four (4) months prior to the date construction of the Project is projected to be complete, Owner shall submit to the City for the City’s review and approval the proposed operating budget for the Services Project which sets forth Owner’s estimate of operating income, operating expenses and debt service for the project, and amounts payable to reserves.

6.3 Management Entity and Replacement of Management Agent. City shall have the right to review and approve the qualifications of the management entity proposed by Owner for the Services Project, and shall have the right to review and approve any agreement executed between Owner and the management entity, which approval shall not be unreasonably withheld. The contracting of management services to a management entity shall not relieve Owner of its primary responsibility for proper performance of management duties. City hereby approves Housing Consortium of the East Bay, a California nonprofit public benefit corporation, as the initial management entity for the Services Project. Any subsequent management entity shall be subject to City review and approval, which shall not be unreasonably withheld or delayed. Upon City determination and delivery of written notice to Owner that Owner has failed to operate the Services Project in accordance with this Agreement, subject to any applicable cure period and the approval of the Services Project lenders and equity investors, City may require Owner to contract with a qualified management agent selected by City and approved by the Services Project lender, to operate the Services Project, or to make such other arrangements as City deems necessary to ensure performance of the required functions. An on-site property management representative shall be available to address issues and to serve as the point of contact for Tenants and the public during regular business hours at the Services Project.

6.4 Resource Center Staffing: In addition to the on-site property management representative, a representative of the management entity is required to work on the Property and serve as the point of contact for clients, Users, and Tenants of the Services Project during business hours at the Services Project. This representative may be employed by the management entity or a non-profit organization providing services on the Property.

6.5 Repair, Maintenance and Security. Throughout the term of this Agreement, Owner shall at its own expense, maintain the Property and the Services Project in good physical

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condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations.

Without limiting the foregoing, Owner agrees to maintain the Services Project and the Property (including without limitation, the food services facility, resource center, common areas, meeting rooms, landscaping, driveways, parking areas and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Services Project. Owner shall prevent and/or rectify any physical deterioration of the Property and the Services Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair. Owner shall provide adequate security measures for the Services Project, including without limitation, the installation of adequate lighting and deadbolt locks.

6.5.1 Additional Requirements. All construction work and professional services for the Services Project shall be performed by persons or entities licensed or otherwise authorized to perform the applicable work or service in the State of California and shall have a current City of Livermore business license if required under local law. Owner shall ensure that all work for compensation is taken in compliance with the requirements of the California Labor Code including but not limited to hours of labor, nondiscrimination, payroll records, apprentices, worker’s compensation and prevailing wages. If applicable, Owner’s Contractor shall comply with all prevailing wage laws, such as sections 1773,1773.8,1775,1776.1777.5,1777.6, and 1813 of the California Labor Code and any other applicable wage and hour law. If any violation of prevailing wage law associated with the Agreement is deemed to have occurred by any court or administrative authority, Owner shall forfeit to the City, as a penalty, the sum of fifty dollars ($50.00) for each calendar day, or portion thereof, for each laborer, worker, or mechanic employed, paid less than the applicable prevailing rates for any work done to accomplish the purposes of this Agreement. To the extent allowed by state and federal laws, Owner shall limit the installation of satellite dish, antenna and other such equipment to screened locations on the Property as approved by the City. Owner shall diligently work to resolve complaints related to noise, parking, litter or other neighborhood concerns.

6.6 City’s Right to Perform Maintenance. In the event that Owner breaches any of the covenants contained in Section 6.3, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall be paid by Owner to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City’s invoice therefor shall bear interest at the lesser of 10% per annum or the highest rate permitted by applicable law.

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6.7 Approval of Leases.

6.7.1 No later than four (4) months prior to the date construction of the Project is projected to be complete, Owner shall submit to the City Owner’s proposed forms of commercial lease agreement and facility use agreement for the City's review and approval. The form of lease must comply with all requirements of the City Documents and must include including the non-discrimination requirements described in Section 2.2 of this Agreement.

6.7.2 No later than thirty (30) days prior to entering into a commercial lease agreement, Owner shall submit to the City the proposed tenant and use of the space for the City’s review and approval.

6.8 Approval of Amendments. If City has not responded to any submission of the Management Plan, the proposed management entity, the proposed management agreement, proposed forms of commercial lease and facility use agreements, a proposed amendment to the Management Plan, or change to any of the foregoing to the City’s Authorized Representative within sixty (60) days following City’s receipt of such plan, proposal, agreement or amendment, the plan, proposal, agreement, or amendment shall be deemed approved by City.

6.9 Fees, Taxes, and Other Levies. Owner shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies applicable to the Property or the Services Project, including without limitation possessory interest taxes, if applicable, imposed by any public entity, and shall pay such charges prior to delinquency. However, Owner shall not be required to pay any such charge so long as (a) Owner is contesting such charge in good faith and by appropriate proceedings, (b) Owner maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Owner immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. The foregoing is not intended to impair Owner’s ability to apply for any applicable exemption from property taxes or other assessments and fees.

6.10 Insurance Coverage. Throughout the term of this Agreement Owner shall comply with the insurance requirements set forth in Exhibit B, and shall, at Owner’s expense, maintain in full force and effect insurance coverage as specified in Exhibit B.

6.11 Property Damage or Destruction. If any part of the Services Project is damaged or destroyed, Owner shall repair or restore the same, consistent with the requirements set forth in this Agreement. Such work shall be commenced as soon as reasonably practicable after the damage or loss occurs and shall be completed within one year thereafter or as soon as reasonably practicable, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible.

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Livermore City CouncilJanuary 10, 2022

Livermore City Council
January 10, 2022