Agenda packet — Livermore City Council, July 24, 2023 (part 1 of 3)

CITY COUNCIL
AGENDA
MONDAY, JULY 24, 2023
REGULAR HYBRID MEETING –
7:00 PM
CLOSED SESSION - 6:30 PM

MEETING PARTICIPATION INFORMATION CAN BE FOUND AT THE END OF THE AGENDA
IN PERSON INFORMATION:

CIVIC CENTER MEETING HALL

CITY COUNCIL CHAMBERS
1016 S. LIVERMORE AVENUE
TELECONFERENCE INFORMATION:

ZOOM WEBINAR:
https://us02web.zoom.us/j/88972523480
Zoom dial in phone number:
1 669 900 6833
Meeting ID: 889 7252 3480
CITY OF LIVERMORE YOUTUBE CHANNEL:
https://www.youtube.com/c/CityofLivermoreCalifornia
TV29:

Comcast TV Channel 29
tv29live.org
John P Marchand, Mayor
Brittni Kiick, Vice Mayor
Ben
Barrientos, Council Member
Evan Branning, Council Member
Robert W Carling, Council Member
Livermore City Council Agenda
July 24, 2023

1 1.

CLOSED SESSION - 6:30PM

Roll Call
Opportunity for the the Public to Address City Council Regarding Closed Session Items Adjourn to Closed Session
No
te: This Closed Session my be continued to the end of the Regular Meeting.

1.1 Public Employee Performance Evaluation. City Attorney Goal Setting for 2023-2024 Review, pursuant to Government Code section 54957.

2. CALL TO ORDER

3. PROCLAMATIONS AND PRESENTATIONS - NONE.

4. OPEN FORUM

In conformance with the Brown Act, no City Council action can occur on items presented during Open Forum.

To provide public comment in person, please submit a speaker card. When your name is called, walk to the lectern to address City Council.

To provide public comment virtually, please log into Zoom and use the 'raise hand' feature.

Comments are limited to a maximum of 3 minutes per person, per item. The Mayor may reduce the amount of time based on the number of persons wishing to speak.

Comments are limited to one comment per person per item regardless of format or time submitted (this includes email and e-comment submissions prior to the meeting as well as live comments during the meeting).

Open Forum will conclude after 30 minutes; however, if there are additional speakers, Open Forum will reconvene before the meeting adjourns.

5. CONSENT CALENDAR

Consent Calendar items are considered routine and are acted upon by the City Council with a single action. Members of the audience wishing to provide public input must submit a speaker card if in person or use the 'raise hand' feature if participating using Zoom. Comments are limited to one comment per person per item regardless of format or time submitted (this includes email and e-comment submissions prior to the meeting as well as live comments during the meeting).

ROLL CALL

Council Member Ben Barrientos
Council Member Evan Branning
Council Member Robert W. Carling
Vice Mayor Brittni Kiick
Mayor John Marchand

PLEDGE OF ALLEGIANCE

REPORT OF ACTION TAKEN IN CLOSED SESSION

Livermore City Council Agenda
July 24, 2023

2 5.1
Resolution authorizing supplemental appropriations of FEMA Storm Reimbursement (Fund 222) and d
elegation of authority to the City Manager to award construction contracts, in an amount not-to-exceed $2,800,000, for the 2023 Storm Damage Debris Removal Project S202300A and 2023 Storm Damage Permanent Repair Project S202300P.

Recommendation:

Staff recommends the City Council adopt a resolution:
1 .

Authorizing supplemental appropriations of FEMA Storm Reimbursement (Fund 222) in the amount of $1,700,000 to FY 2023-24 and $1,125,000 to FY 2024-25 for the 2023 Storm Damage Debris Removal Project S202300A;
2 .

Delegating authority to the City Manager to award construction contracts in a total amount not-to-exceed $2,800,000 for the 2023 Storm Damage Debris Removal Project S202300A and the 2023 Storm Damage Permanent Repair Project S202300P in substantially similar form to the draft contracts in Exhibit A and Exhibit B of the Resolution subject to the City Attorney approval to form of the final construction contracts and Risk Management approval of insurance; execute any change orders or amendments which do not exceed the not-to-exceed amount; reject all other bids, and take whatever actions are necessary and appropriate to carry out the purpose and intent of this resolution, including approving minor changes to the proposed agreement.

Staff Report

Attachments:

1. Site Map

2. Resolution

3. Exhibit A - Draft Construction Contract Mocho

4. Exhibit B - Draft Construction Contract

5.2 Resolution authorizing appropriations of $300,000 in HOME investment partnership program funds for a loan to Tri-Valley REACH, Inc., and authorizing execution of an affordable housing loan agreement, affordable housing regulatory agreement and all related documents between the City of Livermore and Tri-Valley REACH, Inc. for the acquisition of 772 Camden Common.

Recommendation:

Staff recommends the City Council adopt a resolution:

1 .

Authorizing and appropriating $300,000 in HOME Investment Partnership Program (HOME) funds (fund 671) for a loan to Tri-Valley REACH, Inc. to assist with the acquisition of 772 Camden Common;
2 .

Authorizing the City Manager to approve and execute the Affordable Housing Loan Agreement attached in substantial form as Exhibit A to the Resolution and the Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants attached in substantial form as Exhibit B to the Resolution, between the City of Livermore and Tri-Valley REACH, Inc. for 772 Camden Common, subject to final form approval by the City Attorney; and,
3 .

Authorizing the City Manager to execute related documents authorized and described in the loan agreements and necessary to appropriate and expend the HOME funds.

Staff Report

Livermore City Council Agenda
July 24, 2023

3 Attachments:

1. Resolution

2. Exhibit A - Loan Agreement

2. Exhibit B - Regulatory Agreement

5.3 Resolution authorizing appropriations of $307,697 from Business License Tax settlement funds and execution of an 18-month agreement with Rincon Consultants, Inc. to prepare an Environmental Impact Report for the East of Greenville Study Area in an in an amount not-to- exceed $307,697.

Recommendation:

Staff recommends the City Council adopt a resolution:

1 .
appropriating $307,697 from Business License Tax settlement funds to cover the contract cost
2 .
authorizing the City Manager to execute an agreement with Rincon Consultants, Inc. (Rincon) to prepare an Environmental Impact Report for the East of Greenville Study Area, over an 18-month term, in an in an amount not-to-exceed $307,697 in substantially similar form to the draft contract in Exhibit A of the Resolution subject to the City Attorney approval to form of the final construction contract and acceptance of insurance by the Risk Manager.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Draft Professional Services Agreement

5.4 Resolution awarding and authorizing execution of an agreement for a duration not to exceed 180 working days with Terocons Inc. in an amount not-to-exceed $760,407, for the construction of the Crosswalk Improvement Project, No. 2022-06/2021-35.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a construction contract with Terocons Inc. in an amount not-to-exceed $760,407, for a contract duration not to exceed 180 working days, for construction of the Crosswalk Improvement Project, No. 2022-06/2021-35 in substantially similar form to the draft contract in Exhibit A of the Resolution subject to the City Attorney approval to form of the final construction contract and acceptance of insurance by the Risk Manager.

Staff Report

Attachments:

1. Location Map

2. Resolution

3. Exhibit A - Agreement

5.5 Resolution awarding and authorizing execution of an agreement for a duration not-to-exceed 70 working days, in an amount not-to-exceed $365,670, with Gradetech Inc. for repairing 0.8 centerline miles of three trails and constructing a new bypass segment at Robertson Park,

Livermore City Council Agenda
July 24, 2023

4 Project 2018-20

Recommendation:

Staff recommends the City Council adopt a resolution:

1 .

Awarding a construction contract to Gradetech Inc., in an amount not-to-exceed $365,670, for construction of the Multi-Use Trail Repairs - 2020 Project 2018-20, and authorizing the City Manager to sign the agreement as Exhibit A to the resolution; and 2 .

Rejecting all other bids or proposals; and
3 .

Authorizing the City Manager to take whatever actions are necessary and appropriate to carry out the purpose and intent of this resolution including approving minor changes to the proposed agreement.

Staff Report

Attachments:

1. Location Map

2. Resolution

3. Exhibit A - Agreement

5.6 Resolution authorizing execution of a two-year agreement with Interwest Consulting Group to provide planning technical services in an amount not-to-exceed $326,400.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute an agreement with Interwest Consulting Group to provide planning technical services for the period of July 24, 2023, through July 24, 2025, in an amount not-to-exceed $326,400.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Interwest Consulting Group Professional Services Agreement

5.7 Resolution authorizing execution of a five-year license agreement with Trilateral LLC to allow the public to park in the parking lot of the former Bank of the West building at 2287 Second Street.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a license agreement with Trilateral LLC to allow the public to park in the parking lot of the former Bank of the West building located at 2287 Second Street.

Staff Report

Attachments:

1. Location Map

2. Resolution

3. Exhibit A - License Agreement

5.8 Resolution authorizing the City Manager to execute the second amendment to the standard

Livermore City Council Agenda
July 24, 2023

5 services agreement with the County of Alameda accepting grant funding for Horizons Family Counseling, for the term of July 1, 2023 to December 31, 2023, in the total amount not-to- exceed $310,000.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute the Second Amendment to the Standard Services Agreement with the County of Alameda accepting grant funding for Horizons Family Counseling for the term of July 1, 2023 to December 31, 2023, in the total amount not-to-exceed $310,000.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Notice of Intent

3. Exhibit B - Agreement

5.9 Resolution authorizing an agreement with the Livermore Valley Joint Unified School District (LVJUSD) for Horizons Family Counseling to provide mental health related services to LVJUSD students, for the term of November 15, 2022 through June 30, 2024, with a total amount not-to-exceed $240,000.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute an agreement with the Livermore Valley Joint Unified School District (LVJUSD) for Horizons Family Counseling to provide mental health related services to LVJUSD students, for the term of November 15, 2022 through June 30, 2024, with a total amount not-to-exceed $240,000.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Agreement

5.10 Resolution approving a new master property agreement with the Livermore Area Recreation and Park District for joint use properties and facilities.

Recommendation:

Staff recommends the City Council adopt a resolution approving a new master property agreement with the Livermore Area Recreation and Park District for joint use properties and facilities and authorizing the City Manager to sign the agreement.

Staff Report

Attachments:

1. Location Map - Parks

2. Location Map - Trails

3. Resolution

4. Exhibit A - Agreement

5.11 Resolution authorizing the execution of a subordination agreement with Housing Trust Silicon

Livermore City Council Agenda
July 24, 2023

6 Valley (HTSV) that will allow the City’s Deed of Trust recorded on property to take a lower lien position than new first mortgage financing to be provided by HTSV, for the Owl’s Landing Apartments property located at 842 Herman Way.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the City Manager to execute a Subordination Agreement with Housing Trust Silicon Valley, in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney's review and approval as to form and subject to the Risk Manager's review and approval as to insurance, to subordinate the City’s Deed of Trust recorded on the Owl’s Landing Apartments property located at 842 Herman Avenue.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Draft Form of Subordination Agreement with Housing Trust Silicon Valley

5.12 Resolution authorizing execution of a one-year agreement with Tri-Valley Community Television for local cable programming services for Fiscal Year 2023-24 in an amount not-to- exceed $184,705.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the execution of an agreement with Tri-Valley Community Television, in substantially the same form as the one attached to this resolution as Exhibit A, subject to the City Attorney's review and approval as to form and subject to the Risk Manager's review and approval as to insurance, for local cable programming services for Fiscal Year 2023-24 in an amount not-to-exceed $184,705.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Agreement with Tri-Valley Community Television Corporation

5.13 Resolution authorizing the acceptance for permanent maintenance and release of the security bonds, and execution of a Notice of Completion for the Police Facility Expansion Phase 1, Council Chambers Demolition, Project 2000-28.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the Police Facility Expansion Phase 1, Council Chambers Demolition, Project 2000-28 and authorize the City Manager to sign the Notice of Completion, a copy of which is attached as Exhibit A to the resolution.

Staff Report

Attachments:

1. Location Map

2. Resolution

3. Exhibit A - Notice of Completion

Livermore City Council Agenda
July 24, 2023

7 5.14
Resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the public streetscape improvements on the south side of First Street between L Street and M Street constructed as part of First Street South Side Improvements - Downtown Streetscape Phase II Project 200827.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the public streetscape improvements on the south side of First Street between L Street and M Street constructed as part of First Street South Side Improvements - Downtown Streetscape Phase II Project 200827.

Staff Report

Attachments:

1. Location Map

2. Resolution

5.15 Resolution authorizing the acceptance for permanent maintenance, release of the security bonds and execution of a Notice of Completion for the Real Time Awareness Center, Project 2019-58.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing the acceptance for permanent maintenance and release of the security bonds for the Real Time Awareness Center Project 2019-58 and authorizing the City Manager to sign the Notice of Completion, a copy of which is attached as Exhibit A to the resolution.

Staff Report

Attachments:

1. Location Map

2. Resolution

3. Exhibit A - Notice of Completion

5.16 Resolution to summarily vacate a public right-of-way, known as Lot 6 of Parcel Map 6986, and retain the rights of the existing public utility easement within Lot 6, located at Las Positas Road and Bennett Drive.

Recommendation:

Staff recommends the City Council adopt a resolution to summarily vacate a right-of-way known as Lot 6 of Parcel Map 6986 but retain the rights of the existing public utility easement within Lot 6 and authorize the City Manager to quitclaim Lot 6 (right-of-way) to TH Arroyo Vista LLC, a California Limited Liability Company.

Staff Report

Attachments:

1. Vicinity Map

2. Resolution

3. Exhibit A - Lot 6 (right-of-way) Plat & Legal Description

Livermore City Council Agenda
July 24, 2023

8 4. Exhibit B - Quitclaim Deed, TH Arroyo Vista LLC

5.17 Resolution establishing the Appropriations Limitation consistent with State law for FY 2023-24.

Recommendation:

Staff recommends the City Council re-adopt a resolution establishing the Appropriations Limit for FY 2023-24.

Staff Report

Attachments:

1. Resolution

2. Exhibit A - Appropriation Limit FY 2023-24

5.18 Resolution of continued local emergency.

Recommendation:

Staff recommends the City Council adopt a resolution of continued local emergency in response to impacts from a series of severe storm events earlier this year.

Staff Report

Attachments:

1. Resolution

5.19 Resolution authorizing execution of a two-year agreement with Independent Code Consultants Incorporated to provide planning assistant services in an amount not-to-exceed $208,000.

Recommendation:

Staff recommends the City Council adopt a resolution authorizing execution of an agreement with Independent Code Consultants Incorporated to provide planning assistant services for a term of two-years in an amount not-to-exceed $208,000.

Staff Report

Attachments:

1. Resolution

2. Agreement - Independent Code Consultants

5.20 Resolution amending the City of Livermore Salary Plan dated July 3, 2023, reclassifying the City's Cybersecurity Manager position to an IT Operations Manager position and rescinding Resolution 2022-049 that created the City's Cybersecurity Policy to allow staff to convert it to an Administrative Regulation.

Recommendation:

Staff recommends adopting a resolution amending the City of Livermore Salary Plan dated July 3, 2023, reclassifying the City's Cybersecurity Manager position to an IT Operations Manager position and rescinding Resolution 2022-049 that created the City's Cybersecurity Policy to allow staff to convert it to an Administrative Regulation.

Staff Report

Attachments:

Livermore City Council Agenda
July 24, 2023

9 1.

Resolution

2. Exhibit A - Management Salary Schedule dated July 3, 2023 (amended)

6. PUBLIC HEARINGS - NONE.

7. MATTERS FOR CONSIDERATION - NONE.

8. COUNCIL COMMITTEE REPORTS AND MATTERS INITIATED BY CITY

MANAGER, CITY ATTORNEY, AND COUNCIL MEMBERS

9. ADJOURNMENT

To a Regular City Council meeting on Monday, August 14, 2023 at 7:00 pm, Civic Center Meeting Hall, City Council Chambers, 1016 S. Livermore Avenue and virtually using Zoom.

10. SUPPLEMENTAL MATERIALS

10.1 Supplemental materials received prior to the meeting.

Staff Report

Attachments:

1. Supplemental Materials

10.2 Supplemental materials received at the meeting.

Staff Report

Attachments:

1. Items Received at the Meeting

11. HOW TO PARTICIPATE IN YOUR CITY COUNCIL MEETING

You can participate in the meeting in a number of ways:

Open Forum
is an opportunity for the public to speak regarding items not listed on the agenda. Speakers are limited to a maximum of 3 minutes per person. To address the City Council in person, you must submit a speaker card to the City Clerk prior to the start of that item. To submit a comment using Zoom, you may use the 'raise hand' feature when the item begins. Please note that the City Council is prohibited by State law from taking action on any items that are not listed on the agenda. However, if your item requires action, the City Council may place it on a future agenda or direct staff to work with you and/or report to the City Council on the issue.

Public Hearings -
The topic of the hearing is typically summarized by staff, followed by a presentation by the applicant, and questions from the City Council. The Mayor will then open the hearing to the public and offer an opportunity for public comments. Speakers are limited to

Livermore City Council Agenda
July 24, 2023

10 a maximum of 3 minutes per person. To address the City Council in person, you must submit a speaker card to the City Clerk prior to the start of the presentation of the item. To submit a comment using Zoom, you may use the 'raise hand' feature as soon as the item begins.

Other Agenda Items
are also open for public input including Consent Calendar or Matters for Consideration items. These comments are also subject to the 3-minute limit.

Special Meetings, Workshops -
The public will have the opportunity to address the City Council regarding the item that is the subject of the special meeting or workshop. Public comments are limited to a maximum of 3 minutes per person.

Platforms to Participate in Meetings:

Submission of Comments Prior to the Meeting:

Email Comments
may be submitted by the public to the City Clerk’s Office (
[email protected]
). Items received no later than 12:00 pm on the day of the meeting will be provided to the City Council and available on the City website prior to the meeting. These items will NOT be read into the record.

eComments
may be submitted by the public using the eComment link
here
. Comments may
be up to 1000 characters in length and will be accepted up until 4:00 pm the day of the meeting. These items will NOT be read into the record and are viewable by the City Council and the public upon submittal.

Submission of Comments During the Meeting:

Speakers are limited to a maximum of 3 minutes per person. To submit a comment in person, you must complete a speaker card for each item. Speaker cards are available in the Civic Center Meeting Hall lobby. Indicate on the card the item number you wish to comment on and submit the card directly to the City Clerk prior to the start of the item. To submit a comment using Zoom, you may use the 'raise hand' feature. Please note that the City Council is prohibited by State law from taking action on any items that are not listed on the agenda.

However, if your item requires action, the City Council may place it on a future agenda or direct staff to work with you and/or report to the City Council on the issue.

The City will be using YouTube and TV29 as two tools to provide the public access to view City Council meetings. No public comment will be accepted via YouTube.

TV29:
tv29live.org
Comcast Cable 29
YouTube:
http://youtube.com/c/CityofLivermoreCalifornia

Zoom Webinar:
https://us02web.zoom.us/j/88972523480

It is recommended residents use updated software to successfully join and participate in a meeting. Outdated versions may limit functionality and you may not be able to provide a public comment virtually. To download the most current version, visit zoom.us/download
.

Livermore City Council Agenda
July 24, 2023

11 Zoom dial in phone number: 1 669 900 6833
Meeting ID: 889 7252 3480

If you would like to deliver written materials to the City Council as part of your public comments, and are commenting in person, please provide 10 copies to the City Clerk with your speaker card. If you are commenting using Zoom, the speaker must identify that intent in his or her comment and immediately email the materials to the City Clerk at [email protected]
.

The
City Council Agenda and Agenda Reports
are prepared by City staff and are available
for public review on Tuesday evening, six days prior to the City Council meeting in the Civic Center Library, 1188 South Livermore Avenue, Livermore, and at the City Clerk’s Office, 1052 South Livermore Avenue, Livermore. The Agenda is also available on the City’s website, http://LivermoreCA.gov/agenda
.

Under Government Code §54957.5, any
supplemental material
distributed to the members
of the City Council after the posting of this agenda will be available for public review in the City Clerk’s Office, 1052 South Livermore Avenue, Livermore, and included in the agenda packet available on the City’s web site at
http://LivermoreCA.gov/agenda
.

PURSUANT TO TITLE II OF THE AMERICANS WITH DISABILITIES ACT (CODIFIED AT 42 UNITED STATES CODE SECTION 12101 AND 28 CODE OF FEDERAL REGULATIONS PART 35), AND SECTION 504 OF THE REHABILITATION ACT OF 1973, THE CITY OF

LIVERMORE DOES NOT DISCRIMINATE ON THE BASIS OF RACE, COLOR, RELIGION,

NATIONAL ORIGIN, ANCESTRY, SEX, DISABILITY, AGE OR SEXUAL ORIENTATION IN THE PROVISION OF ANY SERVICES, PROGRAMS, OR ACTIVITIES. TO ARRANGE AN

ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PUBLIC MEETING, PLEASE CONTACT THE ADA COORDINATOR AT [email protected] OR CALL (925) 960-4170 (VOICE) OR (925) 960- 4104 (TDD) AT LEAST THREE (3) BUSINESS DAYS IN ADVANCE OF THE MEETING.

Livermore City Council Agenda
July 24, 2023

12 CITY COUNCIL STAFF REPORT
ITEM NO. 5.1

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing supplemental appropriations of FEMA Storm Reimbursement (Fund 222) and d
elegation of authority to the City Manager to award construction contracts, in an amount not-to-exceed $2,800,000, for the 2023 Storm Damage Debris Removal Project S202300A and 2023 Storm Damage Permanent Repair Project S202300P.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution:
1 .

Delegating authority to the City Manager to award construction contracts in a total amount not-to- exceed $2,800,000 for the 2023 Storm Damage Debris Removal Project S202300A and the 2023 Storm Damage Permanent Repair Project S202300P in substantially similar form to the draft contracts in Exhibit A and Exhibit B of the Resolution subject to the City Attorney approval to form of the final construction contracts and Risk Management approval of insurance; execute any change orders or amendments which do not exceed the not-to-exceed amount; reject all other bids, and take whatever actions are necessary and appropriate to carry out the purpose and intent of this resolution, including approving minor changes to the proposed agreement.

SUMMARY
2023 Storm Damage Repair projects will repair and stabilize seven locations shown in Attachment 1 that were damaged during the 2022-23 winter storms. Designs for the repairs, permit applications, and funding applications with FEMA were initiated immediately after the damage occurred. The projects will be advertised for bid in July and the permits for the work are also anticipated in July. Work in the creeks can begin in August, and needs to be completed by October 15, 2023, per regulatory permitting requirements. Because there are no Council meetings in August, staff recommends that the City Manager be authorized to sign construction contracts up to $2,800,000 so these critical repairs can be started in August. Supplemental appropriations of FEMA Storm Reimbursement (Fund 222) are needed 13 to complete this work. These funds will be reimbursed by FEMA after the repairs are completed.

DISCUSSION
The 2022-23 winter storms caused significant damage to public facilities along some of the creeks that flow through the City. On January 10, 2023, the City Council adopted a resolution ratifying the Proclamation of the Director of Emergency Services Concerning the Existence of a Local Emergency (Resolution No. 2023-001) in response to impacts from the series of severe storm events. The City Council adopted resolutions of continued local emergency on February 27, April 24, and June 12, 2023.

Continuing the emergency proclamation allows staff to seek reimbursement of the eligible costs of this work from federal and state agencies through the public assistance program.

Attachment 1 shows the locations of the sites with the most significant damage that must be completed prior to this winter season contingent upon regulatory permit approval. If these projects are not completed there will be additional bank erosion and damage to public facilities, such as the pedestrian trail bridge over the Arroyo Mocho, and potential flooding. The goal of these projects is to stabilize trails and infrastructure that are heavily used by the public and to restore flow capacity at critical areas throughout the City that silted in during the 2022-23 winter storms to prepare for the next rainy season.

In order to expedite the repairs, the storm damage repairs will be split into two projects: work at the four locations along the Arroyo Mocho and work at the three other sites.

Work is summarized in the table below. LOP designates the FEMA grant application location number for each site.

FEMA List of Projects (LOP) No.

Location
Scope of Work
LOP 9
Arroyo Mocho at Stanley Blvd
Debris removal in stream
LOP 9
Arroyo Mocho at Stanley Blvd
Bank stabilization, trail repair
LOP 10
Arroyo Mocho near Native
Gardens
Debris removal in stream
LOP 12
Arroyo Mocho at Holmes St
Sediment removal in stream
LOP 12
Arroyo Mocho at Holmes St
Bank stabilization
LOP 19
Arroyo Mocho at Concannon Blvd
Bank and bridge abutment
stabilization
LOP 5
Arroyo Las Positas at Airway Blvd
Sediment removal in stream
LOP 37
LARPD Sycamore Grove Park
Trail
Permanent repair
LOP 43
Drainage Channel at Golf Drive,
Springtown
Debris removal

Additional debris removal at lower priority locations and permanent repairs at the high priority locations will be completed in FY 2024/25 and FY 2025/26 as part of 2023 Storm Damage - Debris Removal Project S202300A and 2023 Storm Damage Permanent Repair Project S202300P.

FISCAL AND ADMINISTRATIVE IMPACTS

The estimated project costs for high priority storm damage repairs in the summer/fall of 2023 could range up to $2,800,000. There is partial funding for these contracts in FY 2023-24 budgets for 2023 Storm 14 Damage Debris Removal Project S202300A and 2023 Storm Damage Permanent Repair Project S202300P in the 2023-2028 Capital Improvement Plan. A supplemental appropriation of FEMA Storm Reimbursement (Fund 222) in the amount of $1,700,000 to FY 2023-24 for 2023 Storm Damage - Debris Removal Project S202300A is required to cover the estimated costs of these construction contracts, permitting, engineering construction support, biological monitoring, project management, and design services for additional repairs in FY 2024-25. An additional supplemental appropriation of FEMA Storm Reimbursement (Fund 222) in the amount of $1,125,000 to FY 2024-25 for 2023 Storm Damage - Debris Removal Project S202300A is required to cover additional repairs constructed in the summer/fall of 2024. These funds will be reimbursed by FEMA after the repairs are completed.

The existing and proposed budgets for these projects are summarized in the tables below:

2023 Storm Damage- Debris Removal Project No. S202300A
Current Budget

Fund No.

Fund name
FY 2023-24
FY 2024-25
220
Storm Water
$125,000
$95,000
607
State Grant
375,000
280,000

TOTAL
$500,000
$375,000

2023 Storm Damage- Debris Removal Project No. S202300A
Proposed Budget

Fund No.

Fund name
FY 2023-24
FY 2024-25
220
Storm Water
$125,000
$95,000
222
FEMA Storm
Reimbursement
1,700,000
1,125,000
607
State Grant
375,000
280,000

TOTAL
$2,200,000
$1,500,000

2023 Storm Damage Permanent Repair Project S202300P
Current Budget

Fund No.

Fund name

FY 2023-24
FY 2024-25
220
Storm Water
$95,000
$100,000
222
FEMA Storm Reimbursement
1,125,000
1,625,000
607
State Grant
280,000
400,000
615
Federal Grant
0 1,200,000
651
Gas Tax- SB1
0 200,000
677
Measure B-Bike/Pedestrian
0 0
687
Measure BB-Bike/Pedestrian
0 75,000
688
Measure BB-Local St & Rd
0 75,000

TOTAL
$1,500,000
$3,700,000

COMMUNITY PILLAR
5: A City that Works

GOAL
14: Develop, operate, and maintain the City's infrastructure. 15 ATTACHMENTS

1. Site Map

2. Resolution

3. Exhibit A - Draft Construction Contract Mocho

4. Exhibit B - Draft Construction Contract

Prepared by: Edward Reyes
Associate Civil Engineer

Approved by:
____________________________________
Marianna Marysheva
City Manager
Fiscal Review by:
____________________________________
Tina Olson
Administrative Services Director
16 This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable. The City of Livermore is not responsible for misuse or errors or omissions on this map. All information should be confirmed.

City of Livermore, 2023 New Years Storm Sites
50,400
Information Technologies, GIS Division, City of Livermore 8,400.0
Legend
1:

NAD_1983_2011_StatePlane_California_III_FIPS_0403_Ft_US Feet0 8,400.04,200.00 Notes
1/5/2023Date Printed:

City Limits
Major Streets (> 62,500)
Creeks
Public Facilities (4500-100000)
Park Names (4500-100,000)
Lakes
Creeks
Public Facilities
Fire Station
Police Facility
Other Gov't Facility
Schools
Parks
Airport
Fire Station
Police Facility
Other Gov't Facility
2023 LIST OF PROJECTS
FEMA LOP# Location
5 Arroyo Las Positas at Airway Blvd Culverts
9 Arroyo Mocho at Stanley Blvd
10 Arroyo Mocho near Native Gardens
12 Arroyo Mocho at Holmes St
19 Arroyo Mocho at Concannon
37 LARPD Sycamore Grove Trail
43 Drainage Channel at Golf Dr, Springtown
Date: 4/21/2023
19 2023 Storm Damage Repair Site Map
12 9
5 43
37 10
ATTACHMENT 1
17 RESOLUTION NO. ________

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA

A RESOLUTION AUTHORIZING SUPPLEMENTAL APPROPRIATIONS
OF FEMA STORM REIMBURSEMENT (FUND 222) AND DELEGATION

OF AUTHORITY TO THE CITY MANAGER TO AWARD CONSTRUCTION

CONTRACTS
(2023 STORM DAMAGE – DEBRIS REMOVAL PROJECT S202300A &
STORM DAMAGE PERMANENT REPAIR PROJECT S202300P)
2023 Storm Damage Repair projects will repair and stabilize seven locations that were damaged during the 2022/2023 winter storms. Designs for the repairs, permit applications, and funding applications with FEMA were initiated immediately after the damage occurred. The projects will be advertised for bid in July and the permits for the work are also anticipated in July. Work can begin in August and needs to be completed in the creeks by October 15, 2023. Because there are no Council meetings in August, Staff recommends that the City Manager be authorized to sign construction contracts up to $2,800,000 so these critical repairs can be started in August. Supplemental appropriations of FEMA Storm Reimbursement (Fund 222) are needed to complete this work. These funds will be reimbursed by FEMA after the repairs are completed.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby:

1. Authorizes supplemental appropriations of FEMA Storm Reimbursement (Fund 222) in the amount of $1,700,000 to FY 2023-24 and $1,125,000 to FY 2024- 25 for the 2023 Storm Damage Debris Removal Project S202300A;

2. Delegates authority to the City Manager to award construction contracts in a total amount not-to-exceed $2,800,000 for the 2023 Storm Damage Debris Removal Project S202300A and the Storm Damage Permanent Repair Project S202300P in substantially the same form as the draft contracts attached to this resolution as Exhibit A and Exhibit B, subject to the City Attorney’s review and approval as to form of the final construction contracts and subject to the Risk Manager’s review and approval as to insurance; and to execute any change orders or amendments which do not exceed the not-to-exceed amount;

3. Delegates authority to the City Manager to reject all other bids; and,

4. Authorizes the City Manager to take whatever actions are necessary and appropriate to carry out the purpose and intent of this resolution, including approving minor changes to the proposed agreement.

On motion of Council Member ______________________, seconded by Council Member ______________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:
18 RESOLUTION NO. ________
AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
_____________________________ /s/ Tara Mazzanti
Marie Weber Tara Mazzanti
City Clerk Assistant City Attorney
Exhibit A – Draft Construction Contract Mocho
Exhibit B – Draft Construction Contract
19 Livermore Contract Documents, page 28
Contract

CONTRACT
This public works contract (“Contract”) is entered into by and between the City of Livermore, a California Municipal Corporation (“City”) and {Name of Contractor}, {a/an} {list contractor's state of registration here} {identify type of entity here} eg: a California corporation(“Contractor”) for work on the 2023 Storm Damage Repair (Arroyo Mocho Sites) Debris Removal Project S202300A, and Permanent Repair Project No.

S202300P (“Project”).

The Parties Agree as Follows:

1. Award of Contract.

In response to the Notice Inviting Bids, Contractor has submitted a Bid Proposal to perform work on the Project, and on _____________, 20___, as part of Resolution No. __________________, City authorized award of this Contract to Contractor for the amount of Contractor’s bid.

2. Contract Documents.

This Contract consists of all of the written representa tions and submissions made by Contractor as part of the Bid process and the following numbered and un -numbered component documents, as detailed on the table of contents of this Agreement:
a. Bidding requirements (consisting of the Notice Inviting Bids; Instructions to Bidders; Bid Proposal ; Bid Schedule, Subcontractor List, Noncollusion Declaration, Bid Bond , Bidder’s Questionnaire, Payment Bond, Performance Bond, Warranty Bond);
b. General Conditions;
c. Special Conditions;
d. Division One Technical Specifications;
e. Appendix;
f. Index of Defined Terms;
g. Project Drawings and Specifications;
h. Bid Addenda, if any;
i. Change Orders, if any;
j. ALB Notice;
k. Notice to Proceed;

EXHIBIT A
20 Livermore Contract Documents, page 29
Contract
l. City Standard Specifications and Details;
m. And the following: no other documents

3. Contractor’s Obligations.

Contractor agrees to perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, equipment, transportation, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to complete the Work in a professional and expeditious manner and to meet or exceed the per formance standards required by the Contract Documents.

4. Payment.

As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Con tractor _________________________________________ Dollars ($________________) (the “Contract Price ”), in accordance with the payment provisions in the General Conditions.

5. Time for Completion.

5.1. Substantial Completion
Contractor must achieve Substantial Completion, as that term is defined in the General Conditions, of the Project Work within 21 Calendar Days from the commencement date stated in the Notice to Proceed. (“Substantial Completion Deadline.”). For this project, the Contractor shall also incorporate 2 of average anticipated inclement Weather Days into their bid estimate. Contractor shall be solely responsible for the extended overhead and profit for these weather days and shall not be compensated by the City in any way, reference Section 10.3 of the General Conditions and Section 013200-4.3 Contract Schedules for addit ional weather day information. It is critically important to this Project that all work within the creek banks shown on the Project Drawings be completed prior to October 1 5, 2023 as shown in the Contract Schedule (“Creek Work”) because the Regional Water Quality Control Board prohibits the City from undertaking creek work after this date.

5.2. Final Completion
Contractor must achieve Final Completion , as that term is defined in the General Conditions, of the Project Work within 14 Calendar Days after the date of substantial completion. (“Final Completion Deadline.”)

5.3. Early Completion.

By signing below, Contractor expressly waives any claim for delayed early completion.

EXHIBIT A
21 Livermore Contract Documents, page 30
Contract

6. Liquidated Damages.

If Contractor fails to meet either the Substantial Completion Deadline or the Final Completion Deadline, City may assess liquidated damages according the provisions in the General Conditions of the Contract Documents in the following amounts for each day of Unexcused Delay, and the Contract Price shall be reduced accordingly.

6.1. Substantial Completion Deadline: Five thousand dollars ($ 5000) per day.

6.2. Final Completion Deadline: Five hundred dollars ($ 500) per day.

7. Labor Code Compliance.

This Contract is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the California Labor Code, including requirements pertaining to wages, working hours and workers’ compensation insurance.

7.1. Prevailing Wages.

This Project is subject to the prevailing wage requirements applicable to the locality in which the Work is to be performed for each craft, classification or type of worker needed to perform the Work, including employer payments for health and welfare, pension, vacation, apprenticeship and similar purposes. The general prevailing wage rates for each craft, classification or type of covered work is available online at http://www.dir.ca.gov/DLSR.

7.2. DIR Registration.

City will not accept a Bid Proposal from or enter into the Contract with a bidder without proof that the bidder and its Subcontractors are registered with the California Department of Industrial Relations to perform public work under Labor Code, Section 1725.5, subject to limited legal exceptions allowed by the Labor Code.

8. Workers’ Compensation Certification.

Under Labor Code, Section 1861, by signing this Contract, Contractor certifies as follows:
“I am aware of the provisions of Labor Code, Section 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.” The successful bidder previous to the entering of the contract to do the said work shall take out and maintain in full force and effect work er's compensation insurance with an insurance carrier authorized to transact business in the State of California, covering the bidder's full liability for compensation to any persons employed who may be injured in the carrying out of said contract or the d ependents thereof. Evidence of such worker's compensation insurance shall be furnished to the City of Livermore by certificate and waiver of subrogation in the City’s electronic insurance certificate tracking system (PINS)

EXHIBIT A
22 Livermore Contract Documents, page 31
Contract
prior to the commencement of the work and said certificate shall contain a provision that the coverage thereunder will not be canceled until at least thirty (30) days prior written notice has been given to the City.

9. Notice.

Any notice, billing, or payment required by the Contract Documents must be made in writing, and sent to the other party by personal delivery, U.S. Mail, a reliable overnight delivery service, facsimile, or by email as a PDF (or comparable) file. Notice is deemed effective upon delive ry unless otherwise specified. Notice for each party must be given as follows:

City Contractor
Name Joel Waxdeck
Address 1052 South Livermore Avenue
City/state/zip Livermore, CA 94550
Phone (925) 960-4527
Fax (925) 960-4505
Attention Acting City Engineer
Email [email protected]
Copy to [email protected]

10. General Provisions.

The following items are repeated here as stated as part of Part 2, General Conditions, for emphasis:

10.1. Assignment and Successors.

Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s successors and permitted assigns. A consolidation or merger of Contractor or a change in ownership of 25% or more of Contractor’s capital stock constitutes an a ssignment by Contractor requiring the City’s written consent.

10.2. Third Party Beneficiaries.

There are no intended third-party beneficiaries to this Contract except as expressly provided in the General Conditions or Special Conditions.

10.3. Governing Law and Venue.

This Contract will be governed by California law and venue will be in the Superior Court of the County in which the Project is located, and no other place.

10.4. Amendment.

EXHIBIT A
23 Livermore Contract Documents, page 32
Contract
No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

10.5. Integration; Severability.

This Contract and the Contract Documents incorporated herein, including authorized amendments or Change Orders thereto, constitute the final, complete, and exclusive terms of the agreement between City and Contractor. If any provision of the Contract Documents, or portion of a provision, is determined to be illegal, invalid, or unenforceable, the remaining provisions of the Contract Documents will remain in full force and effect.

11. Authorization.

Each individual signing below warrants that he or she is authorized to do so by the party that he or she represents, and that this Contract is legally binding on that party. If Contractor is a corporation, signatures from two officers of the corporation are required under California Corporation Code, Section 313.

The parties agree to this Contract as witnessed by the signatures below:

CITY
City of Livermore, a California
Municipal Corporation

s/_____________________________

Marianna Marysheva, City Manager

Date: ________________________

Approved as to form:

_____________________________
City of Livermore City Attorney

CONTRACTOR

______________________________

s/_____________________________

Name/Title [print]

Date: ________________________

s/_____________________________

Name/Title [print]

Date: ________________________

_______________________________
Contractor’s Calif. License Number(s)

Seal:

EXHIBIT A
24 Livermore Contract Documents, page 33
Contract

__________________________
Expiration Date(s)

END OF DOCUMENT

EXHIBIT A
25 Livermore Contract Documents, page 27
Contract

CONTRACT
This public works contract (“Contract”) is entered into by and between the City of Livermore, a California Municipal Corporation (“City”) and {Name of Contractor}, {a/an} {list contractor's state of registration here} {identify type of entity here} eg: a California corporation(“Contractor”) for work on the 2023 Storm Damage Repair Debris Removal Project S202300A, & Permanent Repair Project S202300P (“Project”).

The Parties Agree as Follows:

1. Award of Contract.

2. Contract Documents.

This Contract consists of all of the written representations and submissions made by Contractor as part of the Bid process and the following numbered and un -numbered component documents, as detailed on the table of contents of this Agreement:
a. Bidding requirements (consisting of the Notice Inviting Bids; Instructions to Bidders; Bid Proposal ; Bid Schedule, Subcontractor List, Noncollusion Declaration, Bid Bond , Bidd er’s Questionnaire, Payment Bond, Performance Bond, Warranty Bond);
b. General Conditions;
c. Special Conditions;
d. Division One Technical Specifications;
e. Appendix;
f. Index of Defined Terms;
g. Project Drawings and Specifications;
h. Bid Addenda, if any;
i. Change Orders, if any;
j. ALB Notice;
k. Notice to Proceed;
l. City Standard Specifications and Details;

EXHIBIT B
26 Livermore Contract Documents, page 28
Contract
m. And the following: no other documents

3. Contractor’s Obligations.

Contractor agrees to perform all of the Work required for the Project, as specified in the Contract Documents. Contractor must provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including all necessary labor, materials, equipment, transportation, and utilities, unless otherwise specified in the Contract Documents. Contractor must use its best efforts to complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents.

4. Payment.

As full and complete compensation for Contractor’s timely performance and completion of the Work in strict accordance with the terms and conditions of the Contract Documents, City will pay Contractor _________________________________________ Dollars ($________________) (the “Contract Price ”), in accordance with the payment provisions in the General Conditions.

5. Time for Completion.

5.1. Substantial Completion
Contractor must achieve Substantial Completion, as that term is defined in the General Conditions, of the Project Work within 27 Working Days from the commencement date stated in the Notice to Proceed. (“Substantial Completion Deadline.”). For this project, the Contractor shall also incorporate 2 of average anticipated inclement Weather Days into their bid estimate. Contractor shall be solely responsible for the extended overhead and profit for these weather days and shall not be compensated by the City in any way, reference Section 10.3 of the General Conditions and Section 013200-4.3 Contract Schedules for additional weather day information. It is critically important to this Project that all work within the creek banks shown on the Project Drawings be completed prior to October 1 5, 2023 as shown in the Contract Schedule (“Creek Work”) because the Regional Water Quality Control Board prohibits the City from undertaking creek work after this date.

5.2. Final Completion
Contractor must achieve Final Completion , as that term is defined in the General Conditions, of the Project Work within 15 Working Days after the date of substantial completion. (“Final Completion Deadline.”)

5.3. Early Completion.

By signing below, Contractor expressly waives any claim for delayed early completion.

6. Liquidated Damages.

EXHIBIT B
27 Livermore Contract Documents, page 29
Contract
If Contractor fails to meet either the Substantial Completion Deadline or the Final Completion Deadline, City may assess liquidated damages according the provisions in the General Conditions of the Contract Documents in the following amounts for each day of Unexcused Delay, and the Contract Price shall be reduced accordingly.

6.1. Substantial Completion Deadline: One thousand dollars ($ 1000) per day.

6.2. Final Completion Deadline: Five hundred dollars ($ 500) per day.

7. Labor Code Compliance.

7.1. Prevailing Wages.

7.2. DIR Registration.

8. Workers’ Compensation Certification.

Under Labor Code, Section 1861, by signing this Contract, Contractor certifies as follows:
“I am aware of the provisions of Labor Code, Section 3700 which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract.” The successful bidder previous to the entering of the c ontract to do the said work shall take out and maintain in full force and effect worker's compensation insurance with an insurance carrier authorized to transact business in the State of California, covering the bidder's full liability for compensation to any persons employed who may be injured in the carrying out of said contract or the dependents thereof. Evidence of such worker's compensation insurance shall be furnished to the City of Livermore by certificate and waiver of subrogation in the City’s electronic insurance certificate tracking system (PINS) prior to the commencement of the work and said certificate shall contain a provision that

EXHIBIT B
28 Livermore Contract Documents, page 30
Contract
the coverage thereunder will not be canceled until at least thirty (30) days prior written notice has been given to the City.

9. Notice.

City Contractor
Name Joel Waxdeck
Address 1052 South Livermore Avenue
City/state/zip Livermore, CA 94550
Phone (925) 960-4521
Fax (925) 960-4505
Attention Acting City Engineer
Email [email protected]
Copy to [email protected]

10. General Provisions.

The following items are repeated here as stated as part of Part 2, General Conditions, for emphasis:

10.1. Assignment and Successors.

Contractor may not assign its rights or obligations under this Contract, in part or in whole, without City’s written consent. This Contract is binding on Contractor’s successors and permitted assigns. A consolidation or merger of Contractor or a change in ownership of 25% or more of Contractor’s capital stock constitutes an assignment by Contractor requiring the City’s written consent.

10.2. Third Party Beneficiaries.

There are no intended third-party beneficiaries to this Contract except as expressly provided in the General Conditions or Special Conditions.

10.3. Governing Law and Venue.

This Contract will be governed by California law and venue will be in the Superior Court of the County in which the Project is located, and no other place.

10.4. Amendment.

No amendment or modification of this Contract will be binding unless it is in a writing duly authorized and signed by the parties to this Contract.

EXHIBIT B
29 Livermore Contract Documents, page 31
Contract

10.5. Integration; Severability.

11. Authorization.

The parties agree to this Contract as witnessed by the signatures below:

CITY
City of Livermore, a California
Municipal Corporation

s/_____________________________

Marianna Marysheva, City Manager

Date: ________________________

Approved as to form:

_____________________________
City of Livermore City Attorney

CONTRACTOR

______________________________

s/_____________________________

Name/Title [print]

Date: ________________________

s/_____________________________

Name/Title [print]

Date: ________________________

_______________________________
Contractor’s Calif. License Number(s)

Seal:

__________________________
Expiration Date(s)

EXHIBIT B
30 Livermore Contract Documents, page 32
Contract

END OF DOCUMENT

EXHIBIT B
31 CITY COUNCIL STAFF REPORT
ITEM NO. 5.2

DATE:

July 24, 2023
TO:

Honorable Mayor and City Council
FROM:

Paul Spence, Community Development Director
SUBJECT:

Resolution authorizing appropriations of $300,000 in HOME investment partnership program funds for a loan to Tri-Valley REACH, Inc., and authorizing execution of an affordable housing loan agreement, affordable housing regulatory agreement and all related documents between the City of Livermore and Tri-Valley REACH, Inc. for the acquisition of 772 Camden Common.

RECOMMENDED ACTION

Staff recommends the City Council adopt a resolution:

1 .

Authorizing and appropriating $300,000 in HOME Investment Partnership Program (HOME) funds (fund 671) for a loan to Tri-Valley REACH, Inc. to assist with the acquisition of 772 Camden Common;
2 .

Authorizing the City Manager to execute related documents authorized and described in the loan agreements and necessary to appropriate and expend the HOME funds.

SUMMARY
Tri-Valley REACH, Inc. (REACH) has requested loan assistance from the City to purchase a 3-bedroom, Below Market Rate townhouse unit located at 772 Camden Common. REACH proposes to use the home as permanent, supportive, shared housing for extremely low-income individuals with disabilities in Livermore who are able to live independently. REACH is requesting the City’s assistance with this project through a HOME loan of $300,000. If approved, the loan would be evidenced through an Affordable Housing Loan Agreement, and Promissory Note secured by a Deed of Trust.

Staff recommends the City Council authorize an appropriation of $300,000 in HOME funds for the 32 acquisition loan to REACH and authorize the City Manager to approve and execute the City loan agreements and all related documents described in those agreements and necessary to appropriate and expend the HOME funds.

DISCUSSION
The City of Livermore has partnered with Tri-Valley REACH, Inc. (REACH) on multiple projects to expand affordable housing opportunities for very low-income people with developmental disabilities in Livermore. REACH currently manages five supported group homes for developmentally disabled people in Livermore and six similar homes in Pleasanton. Through REACH, residents are able to live independently, work and volunteer in their communities. These projects help address the City’s special needs housing goals in the Housing Element of the City’s General Plan by expanding affordable housing and independent living opportunities for extremely low-income households with disabilities.

REACH has requested the City’s assistance to purchase a 3-bedroom, Below Market Rate townhouse unit located at 772 Camden Common (the “Property”) in the Artero development. The unit is currently resale restricted to low-income households through the City’s Affordable Homeownership Program with a restricted sales price of $321,131. Under the resale restriction agreement, the unit may be transferred to non-profit ownership for an affordable housing purpose. REACH proposes to use the Property as permanent, supportive housing for individuals with disabilities in Livermore who are able to live independently. Because REACH serves extremely low-income individuals who are only able to afford very low rents, the organization has limited funds available to self-finance an acquisition.

REACH is requesting the City’s assistance with this project through a HOME loan of $300,000. HOME dollars are limited to activities that either create or preserve housing opportunities. In recent years, the City has mostly funded tenant-based rental assistance programs through HOME. Use of the HOME fund balance on this acquisition would allow the City to spend down its HOME fund balance on an eligible permanent housing use.

If approved, the loan would be evidenced through an Affordable Housing Loan Agreement, and Promissory Note secured by a Deed of Trust. Under the proposed loan terms, payments are deferred for the 55-year term so that the organization may keep rents at extremely low levels (30% of Area Median Income) and divert available cash flow (if any) to fund operating and maintenance reserves for the Property. The City has a history of providing deferred payment acquisition financing for REACH and other affordable housing providers in order to encourage the creation of deeply affordable housing units to particularly vulnerable populations with extremely low incomes, such as people with developmental disabilities.

As a condition of receiving the City’s loan funds, REACH will enter into an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (HOME Regulatory Agreement) for the property.

The HOME Regulatory Agreement outlines affordable rent, tenant income, maximum occupancy and property management requirements by which REACH must abide for the fifty-five (55) year loan term. As the property owner, REACH oversees the long-term asset management of the house and has a property management agreement with Housing Consortium of the East Bay (HCEB) who is responsible for providing property management and resident services to the residents.

Staff recommends the City Council authorize a $300,000 acquisition loan to REACH for the 772 Camden Common property and authorize the City Manager to execute the Affordable Housing Loan Agreement, 33 Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants and all related documents described in those agreements and necessary to commit and expend the HOME funds. If approved, REACH and the current Property owner expect to close escrow on the sale in early August.

FISCAL AND ADMINISTRATIVE IMPACTS

HOME Investment Partnership Program (“HOME”) funds are allocated to the City through the Alameda County HOME Consortium. The City receives approximately $148,000 through the HOME Consortium annually. The City has up to four years to expend funds on a project activity, and there is currently a fund balance of approximately $300,000 available to commit. The proposed loan will accrue three percent (3%) simple, annual interest for twenty (20) years, with the loan due at the end of a 55-year term. Any loan repayments would be accounted in the City’s HOME fund (F671).

COMMUNITY PILLAR

1: A Safe Community that Thrives

GOAL
7: Expand and preserve the supply of affordable housing opportunities.

ATTACHMENTS

1. Resolution

2. Exhibit A - Loan Agreement

2. Exhibit B - Regulatory Agreement

Prepared by: Fran Reisner
Acting Housing and Human Services
Manager

IN THE CITY COUNCIL OF THE CITY OF LIVERMORE, CALIFORNIA A RESOLUTION AUTHORIZING AND APPROPRIATING $300,000 IN HOME

INVESTMENT PARTNERSHIP PROGRAM FUNDS FOR A LOAN TO TRI-VALLEY REACH, INC., EXECUTION OF AN AFFORDABLE HOUSING LOAN AGREEMENT,

AFFORDABLE HOUSING REGULATORY AGREEMENT AND DECLARATION OF

RESTRICTIVE COVENANTS, AND ALL RELATED DOCUMENTS BETWEEN THE CITY OF LIVERMORE AND TRI-VALLEY REACH, INC. FOR THE ACQUISITION OF 772 CAMDEN COMMON
HOME Investment Partnership Program (“HOME”) funds are allocated to the City of Livermore (“City”) through the Alameda County HOME Consortium. HOME dollars are limited to activities that either create or preserve housing opportunities. The City must allocate the funds by December 31, 2023, and has up to four years to expend funds on a project activity.

Tri-Valley REACH, Inc. has requested a loan from the City to assist with the purchase of a 3-bedroom townhouse unit located at 772 Camden Common (the “Property”)for the purpose of permanent, supportive housing for individuals with disabilities in Livermore.

The City has agreed to provide a loan of HOME funds to Tri-Valley REACH, Inc., in the principal amount of $300,000. The deferred payment loan will assist Tri-Valley REACH, Inc. in acquiring the Property and will accrue simple interest at three percent (3%) for 20 years and mature at 55 years. The City and Tri-Valley REACH, Inc. will enter into a regulatory agreement which will restrict the use of the Property as special needs housing that will serve extremely low-income individuals with developmental disabilities.

The City and Tri-Valley REACH, Inc. now wish to enter into the agreements attached to this Resolution to execute this funding request.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livermore that it hereby:

1. Authorizes and appropriates $300,000 in HOME Investment Partnership Program (HOME) funds (fund 671) for a loan to Tri-Valley REACH, Inc. to assist with the acquisition of 772 Camden Common;

2. Authorizes the City Manager to approve and execute the Affordable Housing Loan Agreement and Regulatory Agreement in substantially the same form as attached to this resolution as Exhibit A and Exhibit B, subject to the City Attorney’s review and approval as to form and subject to the Risk Manager’s review and approval as 35 RESOLUTION NO. ________
to insurance, between the City of Livermore and Tri-Valley REACH, Inc. for 772 Camden Common; and,

3. Authorizes the City Manager to execute related documents authorized and described in the attached agreements and necessary to appropriate and expend the HOME funds.

On motion of Council Member _______________________, seconded by Council Member ______________________, the foregoing resolution was passed and adopted on July 24, 2023, by the following vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ABSTAIN: COUNCIL MEMBERS:

ATTEST: APPROVED AS TO FORM:
/s/ Katherine Mirassou
Marie Weber Katherine Mirassou
City Clerk Deputy City Attorney
Exhibit A – Form of Affordable Housing Loan Agreement
Exhibit B – Form of Affordable Housing Regulatory Agreement 36 AFFORDABLE HOUSING LOAN AGREEMENT
(HOME Funds)
by and between

THE CITY OF LIVERMORE
and
TRI-V
ALLEY REACH, Inc.
772 C
amden Common
, 2023

EXHIBIT A
1 37
Loan Agreement
THIS LOAN AGREEMENT (this “Agreement”) is entered into effective as of __________________, 2023 (“Effective Date”) by and between the City of Livermore, a municipal corporation (“City”) and Tri-Valley REACH, Inc., a California nonprofit public benefit corporation (“Borrower ”). The City and the Borrower are collectively referred to herein as the “Parties.”

RECITAL
S
A. The Borrower has entered into a purchase and s ale agreement for that certain three-bedroom residential townhouse condominium unit located within a multifamily residential building located at 772 Camden Common, Livermore, California, commonly known as Alameda County Assessor’s Parcel Number 99-1388-42_________ (together with certain appurtenant rights and as more particularly described in Exhibit A attached hereto, the “Property”).

B. Upo
n satisfaction of the conditions precedent set forth in this Agreement, City will provide a loan to assist in financing Buyer’s acquisition of the Property.

C. Concur
rently with the sale of the Property, among other documents, Borrower will execute: a secured promissory note to evidence Buyer’s obligation to repay the loan City will provide to partially finance Buyer’s acquisition of the Property, a deed of trust that will provide City with a security interest in the Property, and an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants that will restrict rents and occupancy of the Property to eligible extremely low-income individuals for a term of not less than fifty-five (55) years.

D. City is
a Participating Jurisdiction in the Alameda County HOME Consortium and a recipient of funds pursuant to the HOME Investment Partnership Act authorized under Title II of the Cranston-Gonzalez National Affordable Housing Act of 1990 (42 U.S.C. § 12721- 12840) as amended, Catalog of Federal Domestic Assistance Number 14.239, otherwise known as the FY21-22 Home Fund Program for City.

E. Cit
y wishes to engage Borrower as a subrecipient to assist City in utilizing monies from the HOME Fund Program to support affordable housing activities that benefit extremely low-income Livermore residents.

F. On ____ the Livermore City Council approved Resolution No. ____ to award Borrower the amount of $____dollar amount (“Funds”) from its HOME Fund (“Program”) for the Loan.

G. City
and Borrower understand that the Funds awarded from the Program shall be administered consistent with the procedures, standards, regulations, and guidelines for HOME Funds for those activities eligible under 24 C.F.R. Part 92 and consistent with Title 2 of the Code of Federal Regulations, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“2 C.F.R. Part 200”).

EXHIBIT A
2 38
Loan Agreement
NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.

ARTI
CLE I
DEFI
NITIONS; EXHIBITS

1.1 Def initions. The following terms shall have the meanings set forth below whenever used in this Agreement and the Exhibits attached hereto. Additional terms are defined in the Recitals and text of this Agreement.
“Affordable Rent” is defined in the Regulatory Agreement. “Applicable Laws” i s defined in Section 5.1.
“Area Medi an Income” is defined in the Regulatory Agreement. “Authorized Representative” means, for each respective party, the City Manager of the City of Livermore, or his or her designee, and the Board Chairperson of Tri-Valley REACH.
“Borrower” means Tri-Valley REACH, Inc., a California nonprofit public benefit corporation.
“Borrower’s Permitted Exceptions” is defined in Section 3.1. “City” means the City of Livermore, California, a municipal corporation. “City Council” means the City Council of the City of Livermore, California.
“City Documents” means collectively, this Agreement, the Seller Take- Back Note, the Deed of Trust, and the Regulatory Agreement. “City’s Permitted Exceptions” is defined in Section 3.7. “Claims” is defined in Section 10.1.
“Closi ng Date” or “Close of Escrow” shall be the date that escrow closes for Buyer’s acquisition of the Property.
“Deed of Trust” means the deed of trust to be recorded against the Property to secure repayment of the Seller Take-Back Loan. “Eligible Household” is defined in the Regulatory Agreement. “Environmental Laws” is defined in Section 6.9.2.

EXHIBIT A
3 39
Loan Agreement
“Escrow Agent” is defined in Section 3.3.
“Financing Pl an” is defined in Section 2.5.
“Hazardous Material” is defined in Section 6.9.1.
“HOME Funds” are defined in recital D.
“Indemnitees” i s defined in Section 10.1.
“Lender’s Title Policy” is defined in Section 3.7.
“Official Records” means the Official Records of Alameda County. “Owner’s Title Policy” i s defined in Section 3.8.
“Property” is defined in Recital A and described in Exhibit A. “Purchase Price” is defined in Section 3.2.
“Regulatory Agreement” is defined in Section 3.7.
“Seller Take-Back Loan” is defined in Section 4.1.
“Seller Take-Back Note” is defined in Section 4.1.
“Title Company” is defined in Section 3.3.
“Title Report” i s defined in Section 3.1.
“T
ransfer ” is defined in Section 7.2.

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

A L
egal Description of the Property
B Form of Promissory Note
C Form of Deed of Trust
D Form of Regulat ory Agreement (HOME)
E Financing Plan
F Insurance Requirements
ARTI
CLE II

EXHIBIT A
4 40
Loan Agreement
REPRESENTATIONS; EFFECTIVE DATE

2.1 B o
rrower’s Representations. B orrower covenants that until the expiration or earlier termination of this Agreement, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 2.1 to be untrue, Borrower shall immediately give written notice of such fact or condition to City. Borrower acknowledges that City shall rely upon Borrower’s representations made herein notwithstanding any investigation made by or on behalf of City. Borrower hereby represents, warrants, and covenants that the following are true and correct as of the Effective Date and shall be true and correct as of the Closing Date.
(a)
Organization. B orrower is a nonprofit public benefit corporation, duly organized and in good standing under the laws of the State of California and tax-exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. (b) Authority of B orrower. Borrower has full power and authority to execute and deliver this Agreement and all other documents or instruments executed and delivered by Borrower, or to be executed and delivered by Borrower pursuant to or in connection with this Agreement, and to perform and observe the terms and provisions of all of the foregoing. (c) Authority of Pe
rsons Executing Documents. This Agreement and all other documents or instruments executed and delivered by Borrower, or to be executed and delivered by Borrower pursuant to or in connection with to this Agreement, have been executed and delivered, or will be executed and delivered, by persons who are duly authorized to execute and deliver the same for and on behalf of Borrower , and all actions required under Borrower ’s organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and all other documents or instruments executed and delivered by Borrower , or to be executed and delivered by Borrower pursuant to or in connection with this Agreement, have been duly taken or will have been duly taken (to the extent such actions are required) as of the date of execution and delivery of such documents. (d) Valid and Binding Agreements. This Agreement and all other documents or instruments which have been executed and delivered by Borrower or will be executed and delivered by Borrower pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered, constitute, legal, valid and binding obligations of Borrower , enforceable in accordance with their respective terms, subject to laws affecting creditors’ rights and principles of equity.
(e) No Breach of Law or Agreement . Nei
ther the execution nor delivery of
this Agreement or any other documents or instruments executed and delivered by Borrower, or to be executed or delivered by Borrower pursuant to or in connection with this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency binding on Borrower, or any provision of the organizational documents of Borrower, or will conflict with or constitute a breach of or a default

EXHIBIT A
5 41
Loan Agreement
under any agreement to which Borrower is a party, or will result in the creation or imposition of any lien upon any assets or property of Borrower, other than liens established pursuant hereto. (f) Pending Pr oceedings. Except as disclosed in writing to the City prior to execution of this Agreement, Borrower is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and, to the best of its knowledge, there are no claims, actions, suits or proceedings pending or, to the knowledge of Borrower, threatened against or affecting Borrower or the Property, at law or in equity, before or by any court, board, commission or agency. Borrower is not the subject of a bankruptcy or insolvency proceeding.

2.2 City’s Repr esent
ations. City represents and warrants to Borrower that the statements set forth in this Section 2.2 are true and correct as of the Effective Date and shall be true and correct as of the Close of Escrow. City shall notify Borrower of any facts that would cause any of City’s representations contained in this Agreement to be untrue as of the Close of Escrow.
(a) Aut
hority of City. City has full power and authority to execute and deliver this Agreement and all other documents or instruments to be executed and delivered by City pursuant to or in connection with this Agreement, and to perform and observe the terms and provisions of all of the foregoing.
(b) Authority of Persons Executing Documents. This Agreement and all other documents or instruments to be executed and delivered by City pursuant to or in connection with to this Agreement, have been executed and delivered, or will be executed and delivered, by persons who are duly authorized to execute and deliver the same for and on behalf of City, and all actions required for the authorization, execution, delivery and performance of this Agreement and all other documents or instruments to be executed and delivered by Borrower pursuant to or in connection with this Agreement, have been duly taken or will have been duly taken (to the extent such actions are required) as of the date of execution and delivery of such documents. (c) Valid and Binding Agreements. This Agreement and all other documents or instruments that will be executed and delivered by City pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered, constitute, legal, valid and binding obligations of City, enforceable in accordance with their respective terms, subject to laws affecting creditors’ rights and principles of equity. (d) No Breach of Law or Ag reement. Neither the execution nor delivery of this Agreement or any other documents or instruments to be executed or delivered by City pursuant to or in connection with this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency binding on City, or any provision of the organizational documents of City, or will conflict with or constitute a breach of or a default under any agreement to which City is a party, or will result in the creation or imposition of any lien upon any assets or property of City, other than liens established pursuant hereto.

EXHIBIT A
6 42
Loan Agreement
(e) Pending Proceedings. Except as disclosed in writing to Borrower prior to execution of this Agreement, City is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and, to the best of its knowledge, there are no claims, actions, suits or proceedings pending or, to the knowledge of City, threatened against or affecting City, at law or in equity, before or by any court, board, commission or agency. City is not the subject of a bankruptcy or insolvency proceeding.

2.3 Eff ective Date. The obligations of Borrower and City hereunder shall be effective as of the Effective Date which date is set forth in the preamble to this Agreement.

2.4 Aff ordability and Occupancy Restrictions. As more particularly set forth in the Regulatory Agreement, the Property shall be used for occupancy by individuals that have a developmental disability as defined in subdivision 4512(a) of the California Welfare and Institutions Code, and Borrower will be required to provide or arrange for the provision of supportive services to the residents.

2.5 Financing Plan. Borrower shall submit for City review and approval Borrower ’s plan for financing the acquisition and operation of the Property (the “Financing Plan”). The Financing Plan shall indicate all sources of funds necessary to pay acquisition and operating costs and shall be accompanied by evidence that all such funds are subject to binding commitments, in form acceptable to City, from Borrower, grantors, and lenders, subject only to commercially reasonable conditions. The Financing Plan shall include an operating pro forma that sets out in detail Borrower’s plan for financing the costs of acquisition and operation of the Property.

C
ity staff shall review the proposed Financing Plan, and acting through the Authorized Repr
esentative, the City shall approve such plan in writing within fifteen (15) business days following receipt provided that the plan conforms to the requirements of this Section. If the City does not approve the Financing Plan, the City shall set forth its objections in writing and notify Borrower of the reasons for its disapproval. If the City does not approve or provide written objections to Borrower within such fifteen (15) business day period, the Financing Plan shall be deemed rejected. Borrower shall thereafter submit a revised Financing Plan that addresses the reasons for disapproval, and the City shall grant Borrower a reasonable extension of the time deadlines set forth in this Agreement as required to restructure the Financing Plan. City’s approval of the Financing Plan shall be a condition precedent to City’s obligation to deliver Funds to Borrower. The approved Financing Plan shall be attached to this Agreement as Exhibit E.

2.6 Loan and Grant Documents. If applicable, Bor rower shall submit to the City for its review and approval, copies of all other loan and/or grant documents that will be used to finance Borrower’s acquisition of the Property.

ARTICLE III
CONDIT
IONS

EXHIBIT A
7 43
Loan Agreement

PRECEDENT TO LOAN AND ESCROW CLOSING

3.1 Escrow. City and Borrower shall open escrow at the office of Chicago Title Company located at 1676 N. California Blvd., Suite 117, Walnut Creek, C alifornia, or such other title company as the Parties may agree upon (“Escrow Agent” or “Title Company”) in order to consummate the closing of escrow on City financing for the transaction contemplated hereby.

3.2 Costs of Closing and Escrow. Borrower sh all pa y all title insurance premiums for policies Borrower elects to purchase in connection with the acquisition of the Property, and Borrower shall pay all recording fees, transfer taxes, escrow fees and closing costs incurred in connection with the acquisition of the Property. Borrower shall pay for the cost of any lender’s policy of title insurance that City elects to acquire in connection with the transactions contemplated hereby.

3.3 Deposits into Escrow; Closing. The Closing Date shall be a date th at is mutually acceptable to the parties, and which shall occur within thirty (30) days following the Borrower’s satisfaction or City’s waiver of all conditions precedent to the delivery of the Loan for acquisition of the Property as set forth in Section 3.4. Prior to the Close of Escrow, Borrower shall deposit into escrow the City Documents to which Borrower is a party, executed and acknowledged as applicable, Borrower’s share of closing costs, and such additional duly executed instruments and documents as the Escrow Agent may reasonably require. Provided that all conditions precedent to Close of Escrow have been satisfied or waived, City shall deposit into escrow the executed copies of the City Documents to which City is a party, and such additional duly executed instruments and documents as the Escrow Agent may reasonably require. On the Closing Date, the Escrow Agent shall cause the Regulatory Agreement and the Deed of Trust to be recorded in the Official Records in that order.

3.4 C
ity’s Conditions to Closing. City’s obligation to deliver the loan to Borrower is conditioned upon the satisfaction of the terms and conditions set forth in this Section 3.4, unless any such condition is waived in writing by the City acting in the discretion of its Authorized Representative.
(a) N o Default. There shall exist no condition, event or act which would constitute a material breach or default under this Agreement or any other City Document, or which, upon the giving of notice or the passage of time, or both, would constitute such a material breach or default.
(b) Rep resentations. All representations and warranties of Borrower contained herein or in any other City Document or certificate delivered in connection with the transactions contemplated by this Agreement shall be true and correct in all material respects as of the Close of Escrow.
(c) D
ue Authorization and Good Standing. Borrower shall have d elivered to City copies of all of the following, including updated versions of any of the following that have been amended or modified since the date of any prior delivery to City of such documents: (i) a certificate of good standing, certified by the Secretary of State, indicating that Borrower is

EXHIBIT A
8 44
Loan Agreement
properly organized and authorized to do business in the State of California; (ii) copies of Borrower’s articles of incorporation and bylaws, each certified by Borrower’s corporate Secretary as accurate, complete, and in full force and effect; (iii) verification of Borrower’s tax- exempt status; and (iv) a resolution certified by Borrower’s corporate Secretary authorizing Borrower’s execution of and performance under this Agreement and the other City Documents. (d) Execution, Delivery and Recordation of Documents. Borrower shall have executed, acknowledged as applicable, and delivered to City this Agreement, and all other documents required in connection with the transactions contemplated hereby, including without limitation the Promissory Note, a deed of trust substantially in the form attached hereto as Exhibit C to secure repayment of the Promissory Note (the “Deed of Trust”), and an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants substantially in the form attached hereto as Exhibit D (the “Regulatory Agreement”). Concurrently with the Closing, the Regulatory Agreement and the Deed of Trust shall be recorded in the Official Records.
(e
) Lender’s Title Policy. T he Title Company shall, upon payment of the premium therefor, be ready to issue an ALTA Lender’s Policy of Title Insurance for the benefit and protection of City (“Lender’s Title Policy”) in the amount of the Loan, insuring that the Deed of Trust and the Regulatory Agreement are recorded subject only to title exceptions and such other defects, liens, conditions, encumbrances, restrictions, easements and exceptions as City may reasonably approve in writing (collectively, “City’s Permitted Exceptions”) and containing such endorsements as City may reasonably require. (
f) Financing Plan. City sh all have approved the Financing Plan, including without limitation, the operating budget for the Project. (g
) Approval of Financing Documents; Evide nce of Availability of Funds.

City shall have approved any applicable loan and grant documen ts for all financing sources for Borrower’s acquisition and operation of the Property. All other sources of acquisition financing shall have closed or shall close concurrently with the closing for the conveyance of the Property. (
h) Ins urance. Borrower shall have provided evidence satisfactory to City that Borrower has obtained insurance coverage meeting the requirements set forth in Exhibit F. (i) O
ther Documents. Borrower’s deliver y to City, and City approval of such other documents related to the acquisition and operation of the Property as City may reasonably request, including without limitation, an agreement with any agency that will refer Eligible Households for prospective occupancy of the Property.
(j) Federal Environmental Review and Clearance. Notwithstanding any other provision in this Agreement, the City shall have no obligation to provide the Loan to acquire the Property, and no transfer of title to the Borrower may occur, unless and until the City has provided the Developer with written notification that: (1) the City has completed a federally required environmental review pursuant to the National Environmental Policy Act (“NEPA”) and the appropriate approvals and clearances necessary for the release of funds has been approved, with notification that (a) the purchase may proceed, or (b) the purchase may proceed

EXHIBIT A
9 45
Loan Agreement
only if certain conditions to address issues in the environmental review are satisfied before or after the purchase of the Property; or (2) it has determined the purchase is exempt from federal environmental review pursuant to NEPA and a request for release of funds is not required. The City shall use its best efforts to conclude the environmental review pursuant to NEPA of the Property expeditiously.

3.5 Borrower’s Conditions to Closing. Borrower’s obligation to proceed with the acquisition of the Property is subject to the satisfaction or Borrower’s waiver of the following conditions:
(a) No Default. City shall not be in default under the terms of this Agreement, and all representations and warranties of City contained herein shall be true and correct in all material respects;
(b) E xecution of Documents. City shall have executed and acknowledged the Regulatory Agreement, and all other City Docum ents to which the City is a party, and shall have delivered such documents into escrow; and
(c) Owner ’s Title Policy. The Title Company shall, upon payment of the premium therefor, be ready to issue an Owner's Title Insurance Policy for the benefit and protection of Borrower ("Owner’s Tit le Policy") showing title to the Property vested in Borrower, subject only to Buyer’s Permitted Exceptions and containing such endorsements as Borrower may reasonably require, with the cost of such Owner’s Title Policy to be paid by Borrower.

ARTI
CLE IV
CITY

FINANCIAL ASSISTANCE

4.1 Sell er Financing. In order to increase the affordability of the Property for prospective tenants, upon satisfaction of the conditions precedent set forth in Section 3.4, City agrees to provide to Borrower a loan in the amount of Three Hundred Thousand Dollars ($300,000.00) (the “Loan”), upon the terms and conditions and for the purposes set forth in this Agreement. Borrower’s obligation to repay the Loan shall be evidenced by a secured promissory note executed by Borrower substantially in the form attached hereto as Exhibit B (the “Note”).

4.2 L
oan Terms. The outstanding principal balance of the Note will bear interest at a rate equal to three percent (3%) simple annual interest. Annual payments shall be deferred for a term of 55 years from the Closing Date. The entire outstanding principal balance and interest accrued on the Note shall be payable in full on the date which is the fifty-fifth (55th) anniversary of the Closing Date.

4.3 Secur ity. Repayment of the Note shall be secured by a deed of trust that will be executed by Borrower for the benefit of City substantially in the form attached hereto as Exhibit

EXHIBIT A
10 46
Loan Agreement
C and recorded against the Property on the Closing Date. The Deed of Trust may be subordinated only to such liens and encumbrances consistent with the approved Financing Plan as City shall approve in writing consistent with Section 8.2.

4.4 Prepayment; Acceleration.
(a) Prepayment. Borrower shall have the right to prepay the Loan at any time and from time to time, without penalty or premium, provided that any prepayment of principal must be accompanied by interest accrued but unpaid to the date of prepayment. Prepayments shall be applied first to accrued but unpaid interest and then to principal. Any such prepayment shall have no effect upon Borrower’s obligations under the Regulatory Agreement which shall survive for the full term of the Regulatory Agreement.
(b) Due On Tra nsfer or Encumbrance. Unless City agrees otherwise in writing, the entire unpaid principal balance and all interest and other sums accrued under the Note shall be due and payable upon the Transfer absent the prior written consent of City of all or any part of or interest in the Property except as otherwise permitted pursuant to this Agreement. (c)
Default. Th e City shall have the right to accelerate the Maturity Date and declare all sums payable under the Note immediately due and payable upon the expiration of all applicable cure periods following the occurrence of an Event of Borrower Default.

ARTICL
E V

USE OF THE PROPERTY

5.1 Compliance with Laws. Bo rrower shall operate the Property in conformity with all applicable federal, state and local laws, rules, ordinances and regulations (“Applicable Laws”), including without limitation, procedures, standards, regulations, and guidelines for HOME Funds for those activities eligible under 24 C.F.R. Part 92 and consistent with Title 2 of the Code of Federal Regulations, Part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“2 C.F.R. Part 200”), all applicable federal and state labor laws and standards, Section 3 of the Housing and Community Development Act of 1974, as amended (if applicable pursuant to financing sources used for the acquisition or operation of the Property), applicable provisions of the California Public Contracts Code, the City’s zoning and development standards, building, plumbing, mechanical and electrical codes, all other provisions of the City’s Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.. Borrower shall indemnify, defend (with counsel approved by City) and hold harmless the Indemnitees from and against any and all Claims arising in connection with the breach of Borrower’s obligations set forth in this Section whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that City does not and shall not waive any rights against Borrower which it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or Borrower’s deposit with City of

EXHIBIT A
11 47
Loan Agreement
any of the insurance policies described in this Agreement. Borrower’s indemnification obligations set forth in this Section shall not apply to Claims to the extent arising from the gross negligence or willful misconduct of the Indemnitees. Borrower’s defense and indemnification obligations set forth in this Section 5.1 shall survive the expiration or earlier termination of this Agreement.

5.2 Li ens and Stop Notices. Borrower shall not allow to be placed on the Property or any part thereof any lien or stop notice on account of materials supplied to or labor performed on behalf of Borrower. If a claim of a lien or stop notice is given or recorded affecting the Property or any part thereof, Borrower shall within twenty (20) days of such recording or service: (a) pay and discharge (or cause to be paid and discharged) the same; or (b) effect the release thereof by recording and delivering (or causing to be recorded and delivered) to the party entitled thereto a surety bond in sufficient form and amount; or (c) provide other assurance satisfactory to City that the claim of lien or stop notice will be paid or discharged.

5.3 Right of City to S atisfy Liens on the Property. If Borrower fails to satisfy or discharge any lien or stop notice on the Property or any part thereof pursuant to and within the time period set forth in Section 5.2 above, the City shall have the right, but not the obligation, to satisfy any such liens or stop notices at Borrower’s expense and without further notice to Borrower and all sums advanced by City for such purpose shall be part of the indebtedness secured by the Deed of Trust. In such event Borrower shall be liable for and shall immediately reimburse City for such paid lien or stop notice. Alternatively, the City may require Borrower to immediately deposit with City the amount necessary to satisfy such lien or claim pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against Borrower. Borrower shall file a valid notice of cessation or notice of completion upon cessation of construction work on the Property for a continuous period of thirty (30) days or more, and shall take all other reasonable steps to forestall the assertion of claims or liens against the Property. The City may (but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Property.

5.4 I nsu
rance Requirements. Borrower shall maintain and shall cause its contractors to maintain all applicable insurance coverage specified in Exhibit F.

5.5 Affordable Housing. Borrower covenants and agrees for itself, its successors and assigns that the Property will be subject to recorded covenants that will restrict the Property for use as affordable housing for persons with developmental disabilities, and that for a term of not less than fifty-five (55) years, commencing on the Closing Date, the Property shall be available at Affordable Rent to Eligible Households whose income is no greater than thirty percent (30%) of Area Median Income. Borrower shall comply with rent and occupancy restrictions imposed by all applicable financing sources and regulatory agencies if such agencies impose requirements on that are more stringent than those set forth in this Agreement. As more particularly set forth in the Regulatory Agreement, Borrower shall be obligated to screen prospective tenants to establish that they qualify as Eligible Households and may contract with a qualified organization or agency that will provide referrals of Eligible Households for prospective occupancy of the Property. In addition, Borrower will be obligated to provide, or contract with a qualified organization for provision of, supportive social services to the residents of the Property.

EXHIBIT A
12 48
Loan Agreement
Borrower will cooperate with the Regional Center of the East Bay with respect to tenant referrals and supportive services.

5.6 M
ain tenance. Commencing upon Borrower’s acquisition of the Property, Borrower shall at its own expense, maintain the Property in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all Applicable Laws and with all applicable homeowner’s association rules and regulations.

Without limiting the foregoing, Borrower agrees to maintain the Property in a condition free of all waste, nuisance, debris, graffiti, disrepair, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property. Borrower shall prevent and/or r ectify any physical deterioration of the Property and shall make all repairs, ren ewals and replacements necessary to keep the Property in good condition and repa ir.

5.7 T
axes and Assessments. Commencing upon Borrower’s acquisition of the Property, Borrower shall pay all real and personal property taxes, assessments and charges and all franchise, income, payroll, withholding, sales, and other taxes assessed against the Property, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, Borrower shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event the Borrower exercises its right to contest any tax, assessment, or charge, the Borrower, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest.

5.8 Obligation to Re fra
in from Discrimination. Borrower 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. Borrower 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 Borrower or any person claiming under or through Borrower establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or part thereof. Borrower shall include such provision in all deeds, leases, contracts and other instruments executed by Borrower, and shall enforce the same diligently and in good faith. Nothing in this Section 5.8 is intended to prevent the reservation of residential units in the Property for occupancy by individuals that have a developmental disability as defined in subdivision 4512(a) of the California Welfare and Institutions Code.

All deeds, leases or contracts made or entered into by Buyer, its successor s or assigns, as to any portion of the Property shall contain the following language:
(a) In Deeds, the following language shall appear:

EXHIBIT A
13 49
Loan Agreement
“(1) 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. “(2) Subdivision (d) of Section 51 and Section 6714 of the Civil Co de and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).”
(b) In Leases, the following language shall appear:
“(1) 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.
“(2) Subdivision (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).”
(c) In Contracts pertaining to operation or management of the Property, the following language 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,

EXHIBIT A
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Loan Agreement
location, number, use or occupancy of tenants, lessee, subtenants, sublessees or vendees of the land.”
ARTI
CLE VI
CONDI
TION OF THE SITE; ENVIRONMENTAL MATTERS

6.1 B
orro wer’s Post-Closing Obligations. Borrower hereby covenants and agrees that:
(1) Bo
rrower shall not knowingly permit the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Material or otherwise knowingly permit the presence or release of Hazardous Material in, on, under, about or from the Property with the exception of limited amounts of cleaning supplies and other materials customarily used in the use or maintenance of residential properties similar in nature to the Property, and used, stored and disposed of in compliance with Environmental Laws.
(2) Borrower shall keep and maintain the Property and each portion thereof in compliance with, and shall not cause or permit the Property or any portion of either to be in violation of, any Environmental Laws.
(3) Upon receiving actual knowledge of the same, Borrower shall immediately advise City in writing of: (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Borrower, or the Property pursuant to any applicable Environmental Laws; (ii) any and all claims made or threatened by any third party against the Borrower or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Material; (iii) the presence or release of any Hazardous Material in, on, under, about or from the Property; or (iv) Borrower’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property classified as "Border Zone Property" under the provisions of
California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in connection therewith, that may in any way affect the Property pursuant to any Environmental Laws or cause it or any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred to as "Hazardous Materials Claims"). The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claim.

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(4) Without the City’s prior written consent, which shall not be unreasonably withheld or delayed, Borrower shall not take any remedial action in response to the presence of any Hazardous Material in, on, under, or about the Property (other than in emergency situations or as required by governmental agencies having jurisdiction in which case the City agrees to provide its consent), nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Materials Claim. City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys’ fees in connection therewith paid by Borrower.

6.2 Envir onmental Indemnity. To the greatest extent allowed by law, Borrower shall indemnify, defend (with counsel approved by City) and hold Indemnitees harmless from and against all Claims resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Material occurring on, under, in or about the Property after the Close of Escrow, or the transportation of any such Hazardous Material to or from, the Property after the Close of Escrow, or (ii) the failure of Borrower, Borrower’s employees, agents, contractors, subcontractors, or any person acting on behalf of or as the invitee of any of the foregoing to comply with Environmental Laws, except to the extent caused by the City’s gross negligence or willful misconduct.

Buye
r’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 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 Borrower, or any other party for payment of all or any part of the Loan; (iv) the accuracy or inaccuracy of any representation and warranty made by Borrower under this Agreement or by Borrower or any other party under any City Document, (v) the release of Borrower 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 the Loan; and (vii) City’s failure to properly perfect any lien or security interest given as security for the Loan.

The provisions of this Section 6.2 shall be in addition to any and all other obligations and liabilities that Borrower may have under applicable law, and each Indemnitee shall be entitled to indemnification under this Section without regard to whether City or that Indemnitee has exercised any rights against the Property or any other security, pursued any rights against any guarantor or other party, or pursued any other rights available under the City Documents or applicable law. The obligations of Borrower to indemnify the Indemnitees under this Section shall survive any repayment or discharge of the Loan, 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.

6.3 Definitions.

6.3.1 “ Haz ardous Material” means any chemical, compound, material, mixture, or substance that is now or may in the future be defined or listed in, or otherwise classified pursuant to any Environmental Laws (defined below) as a “hazardous substance”,

EXHIBIT A
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“hazardous material”, “hazardous waste”, “extremely hazardous waste”, infectious waste”, toxic substance”, toxic pollutant”, or any other formulation intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, or toxicity. The term “hazardous material” shall also include asbestos or asbestos-containing materials, radon, chrome and/or chromium, polychlorinated biphenyls, petroleum, petroleum products or by-products, petroleum components, oil, mineral spirits, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable as fuel, perchlorate, and methy tert butyl ether, whether or not defined as a hazardous waste or hazardous substance in the Environmental Laws.

6.3.2 " En vironmental Laws" means any and all federal, state and local statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations or directives, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Material, or the protection of the environment or human, plant or animal health, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seq.), the Toxic Mold Protection Act (Cal. Health & Safety Code § 26100, et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. Health & Safety Code § 25249.5 et seq.), the Hazardous Waste Control Act (Cal. Health & Safety Code § 25100 et seq.), the Hazardous Materials Release Response Plans & Inventory Act (Cal. Health & Safety Code § 25500 et seq.), and the Carpenter-Presley-Tanner Hazardous Substances Account Act (Cal.

Health and Safety Code, Section 25300 et seq.).

ARTICL
E VII
LI

MITATIONS ON CHANGE IN OWNERSHIP, MANAGEMENT

AND CONTROL OF BORROWER

7.1 Iden tity of Borrower; Changes Only Pursuant to this Agreement. Borrower and its principals have represented that they possess the necessary expertise, skill and ability to carry out Borrower’s obligations pursuant to this Agreement and the City Documents. The qualifications, experience, financial capacity and expertise of Borrower and its principals are of particular concern to the City. It is because of these qualifications, experience, financial capacity and expertise that the City has entered into this Agreement with Borrower. No voluntary or involuntary successor, assignee or transferee of Borrower shall acquire any rights or powers under this Agreement, except as expressly provided herein.

7.2 P rohibit ion on Transfer. Prior to the expiration of the term of the Regulatory

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Agreement, Borrower shall not, except as expressly permitted by this Agreement, 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 or this Agreement, without the prior written approval of City which approval shall not be unreasonably withheld. Any such attempt to assign this Agreement without the City’s consent shall be null and void and shall confer no rights or privileges upon the purported assignee. In addition to the foregoing, prior to the expiration of the term of the Regulatory Agreement, except as expressly permitted by this Agreement, Borrower 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 Borrower, taking all transfers into account on a cumulative basis..

7.3 Perm
itted Transfers. Notwithstanding any contrary provision hereof, the prohibitions set forth in this Article shall not be deemed to prevent: (i) the lease of individual residences to tenants for occupancy as their principal residence in accordance with the Regulatory Agreement; (ii) assignments creating security interests for the purpose of financing the acquisition or improvement of the Property in accordance with the approved Financing Plan as it may be updated with City approval, and subject to the requirements of Article VIII, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; or (iii) a Transfer to a tax-exempt entity under the direct control of, or under common control with, Borrower.

7.4 Requ irements for Proposed Transfers. The City may, in the exercise of its sole discretion, consent to a proposed Transfer of this Agreement, the Property, or part thereof if all of the following requirements are met (provided however, the requirements of this Section 7.4 shall not apply to Transfers described in clauses (i) and (ii) of Section 7.3):
(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 manage the Property and to otherwise fulfill the obligations undertaken by the Borrower under this Agreement. (ii) The Borrower and the proposed transferee shall submit for City review and approval all instruments and other legal documents proposed to effect any Transfer of all or any part of or interest in the Property 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 Borrower under this Agreement and the other City Documents arising after the effective date of the Transfer and all obligations of Borrower arising prior to the effective date of the Transfer (unless Borrower expressly remains responsible for such obligations), and shall agree to be subject to and assume all of Borrower’s obligations under the City Documents. The assumption of such obligations shall be documented in an assignment and assumption agreement in form approved by City.

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Loan Agreement
(iv) The Transfer shall be effectuated pursuant to a written instrument satisfactory to the City in form recordable in the Official Records. (v) The final form of the organizational documents of the proposed transferee, and any subsequent amendments that affect the City's economic interests under this Agreement or the City Documents shall be subject to the City’s review and approval.

Consent to any proposed Transfer may be given by the City’s Authorized Representative unless the 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 thirty (30) days following City’s receipt of written request by Borrower, the proposed Transfer shall be deemed approved.

7.5 Effec
t of Transfer without City Consent.

7.5.1 In the absence of specific written agreement by the City, no Transfer by Borrower shall be deemed to relieve the Borrower or any other party from any obligation under this Agreement.

7.5.2 I t sha
ll be an Event of Borrower Default hereunder entitling City to pursue remedies including without limitation, termination of this Agreement and/or foreclosure under the Deed of Trust if without the prior written approval of the City, Borrower assigns or Transfers this Agreement or the Property, or any part thereof in violation of Article VII. This Section 7.5.2 shall not apply to Transfers described in clauses (i) and (ii) of Section 7.3).

7.6 Rec
over y of City Costs. Within ten (10) days following City’s delivery to Borrower of an invoice detailing such costs, Borrower 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 effect a Transfer of this Agreement, Borrower’s interest in the Property or part thereof, and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee.

ARTIC

LE VIII

SECURITY FINANCING AND RIGHTS OF MORTGAGEES

8.1 Mortgages and Deeds of Trust. Mo rtgages and deeds of trust, or any other reasonable security instrument are permitted to be placed upon the Property only for the purpose of securing loans for the purpose of financing the acquisition of the Property, and other expenditures reasonably necessary for the improvement or operation of the Property. Borrower shall not enter into any conveyance for such financing without the prior written approval of the Authorized Representative or his or her designee. As used herein, the terms “mortgage” and “deed of trust” shall mean any security instrument used in financing real estate acquisition, construction and land development.

EXHIBIT A
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Loan Agreement

8.2 Subordination. The City agrees that City will consider reasonable requests for subordination of the Deed of Trust and the Regulatory Agreement to deeds of trust provided for the benefit of lenders providing financing for the acquisition or improvement of the Property, 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.

8.3 Notice of Default and Lender Right to Cure. Whenever City deliver s any notice
of default hereunder, City shall concurrently deliver a copy of such notice to each holder of record of any mortgage or deed of trust secured by the Property, provided that City has been provided with the address for delivery of such notice. City shall have no liability to any such holder for any failure by the City to provide such notice to such holder. Each such holder shall have the right, but not the obligation, at its option, to cure or remedy any such default or breach within the cure period provided to Borrower. In the event that possession of the Property (or any portion thereof) is required to effectuate such cure or remedy, the holder shall be deemed to have timely cured or remedied the default if it commences the proceedings necessary to obtain possession of the Property, as applicable, within the applicable cure period, diligently pursues such proceedings to completion, and after obtaining possession, diligently completes such cure or remedy. A holder who chooses to exercise its right to cure or remedy a default or breach shall first notify City of its intent to exercise such right prior to commencing to cure or remedy such default or breach.

8.4 City R
ight to Cure Defaults. In the event of a breach or default by Borrower under a mortgage or deed of trust secured by the Property, City may cure the default, without acceleration of the subject loan, following prior notice thereof to the holder of such instrument and Borrower. In such event, Borrower shall be liable for, and City shall be entitled to reimbursement from Borrower for all costs and expenses incurred by City associated with and attributable to the curing of the default or breach and such sum shall constitute a part of the indebtedness secured by the Deed of Trust.

8.5 Estoppel Certifica tes. Either Party shall, at any time, and from time to time, within fifteen (15) days after receipt of written request from the other Party, execute and deliver to such Party a written statement certifying that, to the knowledge of the certifying Party: (i) this Agreement is in full force and effect and a binding obligation of the Parties (if such be the case), (ii) this Agreement has not been amended or modified, or if so amended, identifying the amendments, and (iii) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature of any such defaults.

ARTICL
E IX

DEFAULTS, REMEDIES AND TERMINATION

9.1 Event of Borrower Default. The f ollowing events shall constitute an event of default on the part of Borrower hereunder (“Event of Borrower Default”):

EXHIBIT A
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(a) Borrower fails to pay when due the principal and interest payable under the Note and such failure continues for thirty (30) days after City notifies Borrower thereof in writing;
(b) A Transfer occurs, either voluntarily or involuntarily, in violation of Artic
le VII;
(c) Borrower fails to maintain insurance as required pursuant to this Agreement, and Borrower fails to cure such default within five (5) days; (d) Borrower fails to pay prior to delinquency taxes or assessments due on the Property or fails to pay when due any other charge that may result in a lien on the Property, and Borrower fails to cure such default within twenty (20) days of the date of delinquency, but in all events prior to the date upon which the holder of any such lien has the right to foreclose thereon; (e) 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;
(f) Any Borrower representation or warranty contained in this Agreement or in any application, financial statement, certificate or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to the City; (g) If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Borrower: (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Borrower in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Borrower; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due;
(h) A court of competent jurisdiction shall have made or entered any decree or order (1) adjudging the Borrower to be bankrupt or insolvent, (2) approving as properly filed a petition seeking reorganization of the Borrower or seeking any arrangement for Borrower under bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (3) appointing a receiver, trustee, liquidator, or assignee of the Borrower in bankruptcy or insolvency or for any of its properties, or (4) directing the winding up or liquidation of the Borrower, in each case if such decree, order, petition, or appointment is not removed or rescinded within sixty (60) days;
(i) Borrower shall have assigned its assets for the benefit of its creditors (other than pursuant to a mortgage loan) or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within sixty (60) days after such event (unless a lesser time period is permitted for cure pursuant to any other mortgage on the Property,

EXHIBIT A
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Loan Agreement
in which event such lesser time period shall apply under this subsection as well) or prior to any sooner sale pursuant to such sequestration, attachment, or execution; (j) The Borrower shall have voluntarily suspended its business or Borrower shall have been dissolved or terminated;
(k) An event of default arises under any City Document and remains uncured beyond any applicable cure period; or
(l) Borrower default s in the performance of any term, provision, covenant or agreement contained in this Agreement other than an obligation enumerated in this Section 9.1 and unless a shorter cure period is specified for such default, the default continues for ten (10) days in the event of a monetary default or thirty (30) days in the event of a nonmonetary default after the date upon which City shall have given written notice of the default to Buyer; provided however, if the default is of a nature that it cannot be cured within thirty (30) days, an Event of Borrower Default shall not arise hereunder if Borrower commences to cure the default within thirty (30) days and thereafter prosecutes the curing of such default with due diligence and in good faith to completion.

9.2 City Def
ault. An event of default on the part of City (“Event of City Default”) shall arise hereunder if City fails to keep, observe, or perform any of its covenants, duties, or obligations under this Agreement, and the default continues for a period of sixty (60) days after written notice thereof from Borrower to City, or in the case of a default which cannot with due diligence be cured within sixty (60) days, City fails to commence to cure the default within sixty (60) days of such notice and thereafter fails to prosecute the curing of such default with due diligence and in good faith to completion.

9.3 C ity’s Rig
ht to Terminate Agreement. If an Event of Borrower Default shall occur and be continuing beyond any applicable cure period, then City shall, in addition to other rights available to it under law or this Agreement, have the right to terminate this Agreement. If City makes such election, City shall give written notice to Borrower and to any mortgagee entitled to such notice specifying the nature of the default and stating that this Agreement shall expire and terminate on the date specified in such notice, and upon the date specified in the notice, this Agreement and all rights of Borrower under this Agreement, shall expire and terminate.

9.4 City’s R
emedies and Rights Upon an Event of Borrower Default. Upon the occurrence of an Event of Borrower Default and the expiration of any applicable cure period, City shall have all remedies available to it under this Agreement or under law or equity, including, but not limited to the following, and City may, at its election, without notice to or demand upon Buyer, except for notices or demands required by law or expressly required pursuant to the City Documents, exercise one or more of the following remedies:
(a) Accelerate and declare the balance of the Note and interest accrued th
ereon immediately due and payable;
(b) Seek specific performance to enforce the terms of the City Documents;

EXHIBIT A
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Loan Agreement
(c) Foreclose on the Property pursuant to the Deed of Trust; (d) Terminate this Agreement pursuant to Section 9.3;
(e) Pursue any and all other remedies available under this Agreement or under law or equity to enforce the terms of the City Documents and City’s rights thereunder.

9.5 Borrower’s Remedies Upon an Event of City Default. Upon the occurrence of an Event of City Default, Borrower’s sole remedy shall be the right to 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. In no event shall Borrower or its assignees or successors in interest be entitled to seek an award of damages in the event of City breach of this Agreement.

9.6 Remedies Cumulative; No Consequential Damages. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same or any other default by the other Party.

9.7 Inaction Not a Waiver of Default. No fa
ilure or delay by either Party in asserting
any of its rights and remedies as to any default shall operate as a waiver of such default or of any such rights or remedies, nor deprive either Party of its rights to institute and maintain any action or proceeding which it may deem necessary to protect, assert or enforce any such rights or remedies in the same or any subsequent default.

9.8 Option to Purchase, Enter and Possess Upon Default. The Ci ty sha ll have the
additional right at its option to purchase, enter and take possession of the Property (the "Purchase Option") if after conveyance of the Property, Borrower violates the restrictions on occupancy or affordability of the Property or otherwise breaches the provisions of the Regulatory Agreement and such default continues beyond the expiration of all applicable cure periods. If it exercises Purchase Option, the City shall pay to the Borrower cash in an amount equal to:
(i) The P
urchase Price plus the fair market value of documented capital improvements to the Property; less
(ii) The value of any liens or encumbrances on the Property that the City assumes or ta
kes subject to (including without limitation, the lien securing repayment of the Note; less (iii) Any amounts owed to the City by Borrower and its successors pursuant to t he City Documents or otherwise; less
(iv) A ll taxes, assessments and utility charges payable with respect to the Property for the period prior to the date the City acquires title to the Property; less

EXHIBIT A
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Loan Agreement
(v) The amount of any payments necessary to discharge or prevent from attaching any subsequent encumbrances or liens due to obligations, defaults, or acts of the Borrower, its successors or transferees; less
(vi) Any damages to which the City is entitled under this Agreement by reason of Borrower's default.

In order to exercise the Pur chase Option, the City shall give Borrower written notice of such exercise, and Borrower shall, within thirty (30) days after receipt of such notice, provide City with documentation supporting the value of any capital improvements Borrower has made to the Property. Within thirty (30) days of City’s receipt of such documentation, City shall pay into an escrow established for such purpose cash in the amount of all sums owing pursuant to this Section 9.8, and Borrower shall execute and deposit into such escrow a grant deed transferring to City all of Buyer’s interest in the Property.

9.9 Treatment of Reserves. If C ity exercises its option to purchase the Property pursuant to Section 9.8, or acquires the Project by foreclosure or deed in lieu of foreclosure, the balances of the Project replacement reserve and operating reserve as of the date the City delivers notice of exercise shall be transferred to City and shall be credited toward the outstanding balance payable under the Note.

9.10 Rights of Mortgagees. Any rights of the City under this Article IX sh all not defeat, limit or render invalid any mortgage or deed of trust permitted by this Agreement or any rights provided for in this Agreement for the protection of holders of such instruments. Any conveyance or return of the Property to the City pursuant to this Article IX shall be subject to mortgages and deeds of trust permitted by this Agreement.

9.11 Assignment. The City shall have the right to assign th e Purchase Option to any other governmental entity or agency, or to a qualified nonprofit corporation.

ARTICL
E X

INDEMNITY AND INSURANCE

10.1 Indemnity. Borrower shall indemnify, defend (with counsel approved by City ) and hold the City and its elected and appointed officers, officials, employees, agents, consultants, and contractors (all of the foregoing, collectively, the “Indemnitees”) harmless from and against any and 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”) (including without limitation, Claims arising from any injury, death, illness, property damage, or loss of property) that directly or indirectly, in whole or in part, are caused by, arise in connection with, or are alleged to be caused by, or arise in connection with, the operation, ownership, management, or

EXHIBIT A
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Loan Agreement
maintenance of the Property, or any part thereof by Borrower or Borrower’s contractors, subcontractors, agents, employees, tenants, invitees, or any other party acting for or on behalf of Borrower, or otherwise arising out of or in connection with Borrower’s performance or failure to perform under this Agreement, including without limitation, Claims arising or alleged to have arisen in connection with any violation of Applicable Laws in connection with the ownership, operation, management, or maintenance of the Property, or relating to approval of this Agreement, whether or not any insurance policies shall have been determined to be applicable to any such Claims. Borrower’s indemnification obligations under this Section 10.1 shall not extend to Claims to the extent arising from the gross negligence or willful misconduct of Indemnitees. The provisions of this Section 10.1 shall survive the expiration or earlier termination of this Agreement. It is further agreed that City does not and shall not waive any rights against Borrower that it may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or the deposit with City by Borrower, of any of the insurance policies described in this Agreement.

10.2 Liability, Workers Compensation, and Property Ins
urance. Borrower shall
comply with all requirements set forth in Exhibit F attached hereto and incorporated herein.

ARTI
CLE XI
DAMAG
E AND DESTRUCTION; CONDEMNATION.

11.1 Damage and Destruction. In the event of any damage or other loss to the Property, or any portion thereof, caused by fire or other casualty prior to the Close of Escrow in an amount not exceeding $50,000, Borrower shall not be entitled to terminate this Agreement, but shall be obligated to close the escrow and purchase the Property as provided in this Agreement, without abatement in the Purchase Price, provided that City shall: (i) assign and transfer to Borrower all of City's rights under any insurance policy covering the damage or loss, and all claims for monies payable from City’s insurer(s) in connection with the damage or loss to the Property, and (ii) pay to Borrower at the Close of Escrow the amount of City’s deductible under the insurance policy or policies covering the damage or loss. In the event of damage or destruction of the Property or any portion thereof prior to the Close of Escrow in an amount in excess of $50,000, Borrower may elect either to terminate this Agreement upon written notice to City, or to consummate the purchase of the Property, in which case City shall (i) assign and transfer to Borrower all of City's rights under any insurance policy covering the damage or loss, and all claims for monies payable from City's insurer(s) in connection with the damage or loss, and (ii) pay to Borrower at the Close of Escrow the amount of City's deductible under the insurance policy or policies covering the damage or loss. In the event Borrower elects to terminate this Agreement, all funds and documents deposited into escrow by or on behalf of Borrower shall be returned to Borrower, and all rights and obligations hereunder shall terminate except such rights and obligations that expressly survive termination of this Agreement.

EXHIBIT A
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Loan Agreement

ARTICLE XII

MISCELLANEOUS PROVISIONS

12.1 Enforced Delay; Extension of Times of Performance. The time for performance of provisions of this Agreement by either Party shall be extended for a period equal to the period of any delay directly affecting the Property or this Agreement which is caused by war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of a public enemy, epidemics, quarantine restrictions, freight embargoes, lack of transportation, suits filed by unrelated third parties concerning or arising out of this Agreement or unseasonable weather conditions (“Force Majeure”). An extension of time for any of the above-specified causes will be deemed granted only if written notice by the Party claiming such extension is sent to the other Party within ten (10) calendar days from the commencement of the cause.

Times of performanc e under this Agreement may also be extended in writing by the mutual agreement of Borrower and City (acting in the discretion of the Authorized Representative unless he or she determines in his or her discretion to refer such matter to the City Council). City and Borrower acknowledge that, notwithstanding any contrary provision of this Agreement, adverse changes in economic conditions, either of the affected Party specifically or the economy generally, changes in market conditions or demand, and/or inability to obtain financing shall not constitute grounds of enforced delay pursuant to this Section. Each Party expressly assumes the risk of such adverse economic or market changes and/or financial inability, whether or not foreseeable as of the Effective Date.

12.3 Not ices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement or any other City Document 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 on 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: C
ity of Livermore
1052 S. Livermore Avenue
Livermore, CA 94550
Attention: Housing and Human Services Manager
Wi
th a copy to: City of Live rmore
1052 S. Livermore Avenue
Livermore, CA 94550
Attention: City Manager
B
orrower: Tri-Valley REACH, Inc.

P.O. Box 5564
Pleasanton, CA 94566

EXHIBIT A
26 62
Loan Agreement
Atte ntion: Board Chairperson

12.4 A
ttorn eys’ Fees. If either Party fails to perform any of its obligations under this Agreement, or if any dispute arises between the Parties concerning the meaning or interpretation of any provision hereof, then the prevailing Party in any proceeding in connection with such dispute shall be entitled to the costs and expenses it incurs on account thereof and in enforcing or establishing its rights hereunder, including, without limitation, court costs and reasonable attorneys’ fees and disbursements.

12.5 Waivers
; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving Party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the Party granting the extension. This Agreement may be amended or modified only by a written instrument executed by the Parties.

12.6 Binding on Successors. S ubj
ect to the restrictions on Transfers set forth in
Article VII, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and assigns. Any reference in this Agreement to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement or under law.

12.7 Survival. All represen tat
ions made by Borrower hereunder, Borrower ’s
obligations pursuant to Sections 5.1, 6.1, 6.2, 10.1 and 12.1, and all other provisions that expressly so state, shall survive the Close of Escrow, the transfer of the Property to Buyer, and the expiration or termination of this Agreement.

12.8 Headings; Int
erpretation; Statutory References. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement.

The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree, that since both Parties have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. All references in the City Documents 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.

12.9 Act
ion or Approval. Whenever action and/or approval by City is required under this Agreement, the City’s Authorized Representative or his or her designee may act on and/or approve such matter unless specifically provided otherwise, or unless the Authorized Representative determines in his or her discretion that such action or approval requires referral to City governing board for consideration.

EXHIBIT A
27 63
Loan Agreement

12.10 En tire Agreement. This Agreement, including Exhibits A through F attached hereto and incorporated herein by this reference, together with the other City Documents contains the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the Parties with respect to the subject matter hereof. If the Exhibits to this Agreement are inconsistent with this Agreement, the more restrictive requirements shall control, as determined by the City’s Authorized Representative. In the event of a conflict between this Agreement and the other City Documents, the more restrictive requirements shall control, as determined by the Authorized Representative.

12.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which taken together shall constitute one instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto having additional signature pages executed by the other Party. Any executed counterpart of this Agreement may be delivered to the other Party by facsimile and shall be deemed as binding as if an originally signed counterpart was delivered.

12.12 Sever
ability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability.

12.13 No Third Party Beneficiaries. Exce
pt as expressly set forth herein, nothing
contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.

12.14 Par ties 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 Borrower and City is and shall remain solely that of a debtor and a creditor, and 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 Borrower (except as expressly provided in this Agreement) or to any third party with respect to the Property or the City financing described herein. Borrower and its employees are not employees of City but rather are, and shall always be considered independent contractors. Furthermore, Borrower and its employees shall at no time hold themselves out as employees or agents of City. Except as City may specify in writing, Borrower shall not have any authority to act as an agent of City or to bind City to any obligation.

12.15 Ti
me of the Essence; Calculation of Time Periods. Time is of the essence for each condition, term, obligation and provision of this Agreement. Unless otherwise specified, in computing any period of time described in this Agreement, the day of the act or event after which the designated period of time begins to run is not to be included and the last day of the period so computed is to be included, unless such last day is not a business day, in which event the period shall run until the next business day. The final day of any such period shall be deemed to end at 5:00 p.m., local time at the Property. For purposes of this Agreement, a

EXHIBIT A
28 64
Loan Agreement
“business day” means a day that is not a Saturday, Sunday, a federal holiday or a state holiday under the laws of the State of California.

12.16 Governing Law; Venue. Thi s Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 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.

12.17 Inspection of Books and Records. Upon request, Borro wer shall permit the City
to inspect at reasonable times and on a confidential basis those books, records and all other documents of Borrower necessary to determine Buyer’s compliance with the terms of this Agreement.

12.18 Political Activity. None of the funds, materials, property or services contributed by City to Borrower under this Agreement shall be used for any partisan political activity or the election or defeat of any candidate for public office.

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

12.20 C
onflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person described in subsection (b) below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person’s tenure. The Borrower shall exercise due diligence to ensure that the prohibition in this Section is followed.
(b) In accordance with Government Code Section 1090 and the Political Reform Act, Government Code Section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of the Borrower, or immediate family member of any of the preceding, shall make or participate in a decision, made by the City or a City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or the Borrower.

Interpretation of this Section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code Section 87100 et seq., its implementing regulations manual and codes, and Government Code Section 1090.

EXHIBIT A
29 65
Loan Agreement
IN WITNESS WHEREOF, the Parties have entered into this Agreement effective as of t
he date first written above.

BO
RROWER :

Tri-
Valley REACH, Inc., a California nonprofit public benefit corporation By:
_______________________
Pr
int Name:__Patrick O’Br ien______________________
Title
:__Treasurer, Board of Directors_________________
CIT
Y:

Ci
ty of Livermore, a municipal corporation
By:
_______________________________
City Manager
ATTEST
:
_____________________________
City Clerk
APP
ROVED AS TO FORM:
_
City A ttorney

EXHIBIT A
30 66

EXHIBIT A

LEGAL DESCRIPTION

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF LIVERMORE, IN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

Lots 28 as shown on the final map of Tract 7724 filed for record on August 10, 2015, in Book 333 of Maps, at Pages 48 through 52, inclusive, in the Official Records of the County of Alameda, State of California.

EXHIBIT A
31 67

SECURED PROMISSORY NOTE
$300,000.00 772 Camde
n Common
Livermore, California
_____________, 2023

FOR VALUE
RECEIVED, Tri-Valley REACH, Inc., a California nonprofit public benefit corporation (“Borrower”), promises to pay to the City of Livermore, a municipal corporation (the “City”), in lawful money of the United States of America the principal sum of Three Hundred Thousand Dollars ($300,000.00) or so much thereof as may be advanced by City pursuant to the Loan Agreement referred to below, together with interest on the outstanding principal balance in accordance with the terms and conditions described herein. Interest shall accrue on the principal balance of this Note outstanding from time to time at the rate of three percent (3%) simple annual interest for 20 years from the date of this Note. Interest shall be calculated on the basis of a year of 365 days, and charged for the actual number of days elapsed.

This Secured Promissory Note (this “Note”) has been executed and delivered pursuant to and in accordance with an Affordable Housing Loan Agreement, dated as of the date hereof, executed by and between City and Borrower (the “Loan Agreement”), and is subject to the terms and conditions of the Loan Agreement, which is by this reference incorporated herein and made a part hereof. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Loan Agreement.

This Note is secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (“Deed of Trust”) dated as of the date hereof, executed by Borrower for the benefit of City and encumbering the property described therein. City 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 Loan Agreement, and the other City Documents, including without limitation, that certain Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants dated as of the date hereof, executed by and between City and Borrower and recorded in the Official Records of Alameda County (the “Regulatory Agreement”). 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. The Loan Agreement, this Note, the Regulatory Agreement, and the Deed of Trust are collectively referred to herein as the “City Documents.”

1. PAYMENTS.

1.1 PAYMENT DATES; MATURITY DATE. Annual payments on this Note shall be deferred for Term of the Loan. Payments shall be credited first to any unpaid late charges and other costs and fees then due, then to accrued interest, and then to principal. In no event shall any amount due under this Note become subject to any rights, offset, deduction or counterclaim on the part of Borrower. The entire outstanding principal balance of this Note, together with interest accrued thereon and all other sums accrued hereunder shall be payable in full on the date (the “Maturity Date”) which is the fifty-fifth (55th) anniversary of the date hereof.

EXHIBIT B

EXHIBIT A
32 68

1.2 DUE ON S
ALE. The entire unpaid principal balance and all interest and other sums accrued hereunder shall be due and payable upon the Transfer (as defined in the Regulatory Agreement) absent City consent, of all or any part of the Property or any interest therein other than a Transfer permitted without City consent pursuant to the Regulatory Agreement. Without limiting the generality of the foregoing, this Note shall not be assumable without City’s prior written consent, which consent may be granted or denied in City’s sole discretion.

1.3 PR
EPAYMENT. Borrower may, without premium or penalty, at any time and from time to time, prepay all or any portion of the outstanding principal balance due under this Note, provided that each such prepayment is accompanied by accrued interest on the amount of principal prepaid calculated to the date of such prepayment. Prepayments shall be applied first to any unpaid late charges and other costs and fees then due, then to accrued but unpaid interest, and then to principal. The Regulatory Agreement shall remain in full force for the entire term thereof regardless of any prepayment of this Note.

1.4 M
ANNER OF PAYMENT. All payments of principal and interest on this Note shall be made to City at 1052 S. Livermore Avenue, Livermore, CA 94550, or such other place as City shall designate to Borrower in writing, or by wire transfer of immediately available funds to an account designated by City in writing.

2. DEF
AULTS AND REMEDIES.

2.1 EVENT
S OF DEFAULT. The occurrence of any one or more of the following events shall constitute an event of default hereunder (“Event of Default”):
(A) Borrower fails t o pay when due the principal and interest payable hereunder and such failure continues for ten (10) days after City notifies Borrower thereof in writing. (B) Pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Borrower (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Borrower in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Borrower; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due. (C) A court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Borrower in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Borrower or substantially all of Borrower’s assets, (iii) orders the liquidation of Borrower, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the Property, and in each case the order or decree is not released, vacated, dismissed or fully bonded within ninety (90) days after its issuance. (D) The occurrence of a Transfer in violation of the Loan Agreement or the Regulatory Agreement.

EXHIBIT B

EXHIBIT A
33 69
(E) The holder of any debt instrument secured by a mortgage or deed of trust on the Property declares a default, and such default remains uncured beyond any applicable cure period such that the holder of such instrument has the right to accelerate payment thereunder. (F) Borrower fails to maintain insurance as required pursuant to the City Documents and Borrower fails to cure such default within five (5) days. (G) Subject to Borrower’s right to contest the following charges pursuant to the City Documents, if Borrower fails to pay taxes or assessments due on the Property or fails to pay any other charge that may result in a lien on the Property, and Borrower fails to cure such default within twenty (20) days, but in all events before the imposition of any such tax or other lien. (H) If any representation or warranty contained in any City Document, or any certificate furnished in connection therewith, or in connection with any request for disbursement of the proceeds of the Loan proves to have been false or misleading in any material adverse respect when made and continues to be materially adverse to the City. (I) An Event of Default shall have been declared under the Loan Agreement or any other City Document, including without limitation, the Regulatory Agreement, and remains uncured beyond the expiration of the applicable cure period.

2.2 REMEDIES. Upon the occurrence of an Event of Default hereunder, City may, at its option (i) by written notice to Borrower, declare the entire unpaid principal balance of this Note, together with all accrued interest thereon and all sums due hereunder, immediately due and payable regardless of any prior forbearance, (ii) exercise any and all rights and remedies available to it under applicable law, and (iii) exercise any and all rights and remedies available to City under this Note and the other City Documents, including without limitation the right to pursue foreclosure under the Deed of Trust. Borrower shall pay all reasonable costs and expenses incurred by or on behalf of City including, without limitation, reasonable attorneys' fees, incurred in connection with City's enforcement of this Note and the exercise of any or all of its rights and remedies hereunder and all such sums shall be a part of the indebtedness secured by the Deed of Trust. The rights and remedies of City under this Note shall be cumulative and not alternative.

2.3 DEFAULT RATE. Upon the occurrence of an Event of Default, interest shall automatically be increased without notice to the 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 City from exercising any of its other rights or remedies.

EXHIBIT B

EXHIBIT A
34 70

3. MISCELLANEOUS.

3.1 WA IVERS; AMENDMENTS; BORROWER’S WAIVERS. No waiver by City of any right or remedy under this Note shall be effective unless in a writing signed by City.

Neither the failure nor any delay in exercising any right, power or privilege under this Note will operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege by City will preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege. No waiver that may be given by City will be applicable except in the specific instance for which it is given. No notice to or demand on Borrower will be deemed to be a waiver of any obligation of Borrower or of the right of City to take further action without notice or demand as provided in this Note. There shall be no amendment to or modification of this Note except by written instrument executed by Borrower and City.

To the maximum extent permitted by applicable law Borrower hereby waives presentment, demand, protest, notices of dishonor and of protest and all defenses and pleas on the grounds of any extension or extensions of the time of payment or of any due date under this Note, in whole or in part, whether before or after maturity and with or without notice.

3.2 NOTICES. Any notice required or permitted to be given hereunder shall be given in accordance with Section 12.3 of the Loan Agreement.

3.3 SEV ERABILITY. If any provision in this Note is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Note will remain in full force and effect. Any provision of this Note held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

3.4 GOVERNING LAW; VENUE. This Note shall be governed by the laws of the State of California without regard to principles of conflicts of laws. Any legal action filed in connection with this Note shall be filed in the Superior Court of Alameda County, California, or in the Federal District Court for the Northern District of California.

3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its successors and assigns and shall accrue to the benefit of City and its successors and assigns.

3.6 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this Note are provided for convenience only and will not affect its construction or interpretation.

3.7 RELATIONSHIP OF THE PARTIES. The relationship of Borrower and City under this Note is solely that of borrower and lender, and the loan evidenced by this Note and secured by the Deed of Trust will in no manner make City the partner or joint venturer of Borrower.

3.8 TIME IS OF THE ESSENCE. Time is of the essence with respect to every provision of this Note.

3.9 NONRECOURSE. Except as expressly provided in this Section 3.9, Borrower shall have no personal liability for payment of the principal of, or interest on, this Note, and the

EXHIBIT B

EXHIBIT A
35 71
sole recourse of City with respect to the payment of the principal of, and interest on, this Note shall be to the Property and any other collateral held by City 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 City under the Deed of Trust as such may be amended, modified, or restated from time to time; (B) impair the right of City to bring a foreclosure action, action for specific performance or other appropriate action or proceeding to enable City to enforce and realize upon the Deed of Trust, the interest in the Property created thereby and any other collateral given to City 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 City 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 City may have under any bankruptcy law to file a claim for the full amount of the indebtedness owed to City hereunder or to require that the Property shall continue to secure all of the indebtedness owed to City hereunder in accordance with this Note and the Deed of Trust; or (E) limit or restrict the ability of City to seek or obtain a judgment against Borrower to (1) recover under any provision of the City Documents that obligates Borrower to indemnify City, or (2) recover from Borrower compensatory damages as well as other costs and expenses incurred by City (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 any officer, director or authorized representative of Borrower 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 City in connection with the Loan; (b) any failure to maintain insurance as required pursuant to the City Documents; (c) failure to pay taxes, assessments or other charges which may become liens on the Property (subject to the right to contest as set forth in the Loan Agreement); (d) the violation of the Borrower’s obligations under Article VI of the Loan Agreement or Section 7.11 of the Deed of Trust (pertaining to environmental matters), except as limited by the provisions of such agreements; (e) the occurrence of any act or omission of Borrower that results in waste to or of the Property and which has a material adverse effect on the value of the Property; (f) 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; (g) 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 Property; and (h) the failure of Borrower to pay all amounts payable under this Note in full if Borrower Transfers the Property in violation of the Loan Agreement or the Regulatory Agreement.
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GNATURES ON NEXT PAGE]

EXHIBIT B

EXHIBIT A
36 72
IN WITNESS WHEREOF, Borrower has executed this Secured Promissory Note as of th
e date first written above.

BORRO
WER:

Tri-Valley REACH, Inc., a California nonprofit public benefit corporation By:
____________________________
Pr
int Name: _Patrick O’Brien________
Title
: _Treasurer, Board of Directors_____

EXHIBIT B

EXHIBIT A
37 73
Recording Requested by
and when Recorded, return to:

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

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN: 99-1388-42 Spac e above this line for Recorder’s use.

DEED O

F TRUST, ASSIGNMENT OF RENTS,

SECURITY AGREEMENT AND FIXTURE FILING

THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (“Deed of Trust”) is made as of ____________, 2023, by Tri- Valley REACH, a California nonprofit public benefit corporation (“Trustor”) to Chicago Title Company as trustee (“Trustee”), for the benefit of the City of Livermore, a municipal corporation (“Beneficiary”).

RECITALS
A. Trustor owns fee s imple title to the land described in Exhibit A attached hereto and incorporated herein by this reference (the “Land”). The Land is located in the City of Livermore, Alameda County, California.

B. Beneficiary and Trustor have entered into an unrecorded Purchase and Sale a
nd Loan Agreement dated as of the date hereof (the “Loan Agreement”) pursuant to which Beneficiary is providing a loan to Trustor in the amount of Three Hundred Thousand Dollars ($300,000.00) (the “Loan”) for the purpose of partially financing Trustor’s acquisition of the Property. Trustor has issued to Beneficiary a secured promissory note dated as of the date hereof (the “Note”) to evidence Trustor’s obligation to repay the Loan. In addition, Trustor and Beneficiary have executed an Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants dated as of the date hereof (the “Regulatory Agreement”) which imposes certain rent and occupancy restrictions and which shall be recorded substantially concurrently with this Deed of Trust. The Note, the Loan Agreement, the Regulatory Agreement and this Deed of Trust, as any of the foregoing instruments may be modified, supplemented, amended, renewed or extended, are hereinafter referred to as the “City Documents”.

C. As a condit ion precedent to the making of the Loan, Beneficiary has required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of Beneficiary, a lien and security interest in the Property (defined below) to secure repayment of the Note and performance of Trustor’s obligations under the Loan Agreement and the other City Documents.

EXHIBIT C

EXHIBIT A
38 74
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows.

1. Grant in Trust. In c onsideration of the foregoing and for the purpose of securing payment and performance of the Secured Obligations defined and described in Section 2, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title and interest which Trustor now has or may later acquire in and to the Land, and all of the following, whether presently owned or hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or constr
ucted on the Land (“Improvements”);
b. All appurtenances, easements, rights of way, pipes, transmission lines or wires and other rights used in connection with the Land or the Improvements or as a means of access thereto, whether now or hereafter owned or constructed or placed upon or in the Land or Improvements and all existing and future privileges, rights, franchises and tenements of the Land, including all minerals, oils, gas and other commercially valuable substances which may be in, under or produced from any part of the Land, and all water rights, rights of way, gores or strips of land, and any land lying in the streets, ways, and alleys, open or proposed, in front of or adjoining the Land and Improvements (collectively, “Appurtenances”);
c. All machinery, equipment, fixtures, goods and other personal property of the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor and now or hereafter located at or used in connection with the Land, the Improvements or Appurtenances, and all improvements, restorations, replacements, repairs, additions or substitutions thereto (collectively, “Equipment”);
d. All existing and future leases, subleases, licenses, and other agreements relating to the use or occupancy of all or any portion of the Land or Improvements (collectively, “Leases”), all amendments, extensions, renewals or modifications thereof, and all rent, royalties, or other payments which may now or hereafter accrue or otherwise become payable thereunder to or for the benefit of Trustor, including but not limited to security deposits (collectively, “Rents”);
e. All insurance proceeds and any other proceeds from the Land, Improvements, Appurtenances, Equipment, Leases, and Rents, including without limitation, all deposits made with or other security deposits given to utility companies, all claims or demands relating to insurance awards which the Trustor now has or may hereafter acquire, including all advance payments of insurance premiums made by Trustor, and all condemnation awards or payments now or later made in connection with any condemnation or eminent domain proceeding (“Proceeds”);

EXHIBIT C

EXHIBIT A
39 75
f. All revenues, income, rents, royalties, payments and profits produced by the Land, Improvements, Appurtenances and Equipment, whether now owned or hereafter acquired by Trustor (“Gross Revenues”);
g. All architectural, structural and mechanical plans, specifications, design documents and studies produced in connection with the rehabilitation of the Improvements (collectively, “Plans”); and
h. All interests and rights in any private or governmental grants, subsidies, loans or other financing provided in connection with the rehabilitation of the Improvements (collectively, “Financing”).

All of the above-referenced interests of Trustor in the Land, Improvements, Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and Financing as hereby conveyed to Trustee or made subject to the security interest herein described are collectively referred to herein as the “Property.”

2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment and performance of the following (collectively, the “Secured Obligations”): (i) all present and future indebtedness evidenced by the Note and any amendment thereof, including principal, interest and all other amounts payable under the terms of the Note; (ii) all present and future obligations of Trustor to Beneficiary under the City Documents; (iii) all additional present and future obligations of Trustor to Beneficiary under any other agreement or instrument acknowledged by Trustor (whether existing now or in the future) which states that it is or such obligations are, secured by this Deed of Trust; (iv) all obligations of Trustor to Beneficiary under all modifications, supplements, amendments, renewals, or extensions of any of the foregoing, whether evidenced by new or additional documents; and (v) reimbursement of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interests under this Deed of Trust or any other City Document.

3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits, revenue, income and proceeds of the Property. This is an absolute assignment and not an assignment for security only. Beneficiary hereby confers upon Trustor a license to collect and retain such Rents, royalties, issues, profits, revenue, income and proceeds as they become due and payable prior to any Event of Default hereunder. Upon the occurrence of any such Event of Default, Beneficiary may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property or any part thereof, and 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, to any indebtedness secured hereby, and in such order as Beneficiary may determine. Beneficiary’s right to the rents, royalties, issues, profits, revenue, income and proceeds of the Property does not depend upon whether or not Beneficiary takes possession of the Property. The

EXHIBIT C

EXHIBIT A
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entering upon and taking possession of the Property, 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 done pursuant to such notice.

If an Event of Default occurs while Beneficiary is in possession of all or part of the Property and/or is collecting and applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder.

Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Land or the Improvements, Beneficiary shall not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any obligation of Trustor under any Lease, shall not be liable in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of it, and shall not be responsible for any waste committed by Trustor, lessees or any third parties, or for dangerous or defective condition of the Property or any negligence in the management, repair or control of the Property. Absent Beneficiary’s written consent, Trustor shall not accept prepayment of Rents for any rental period exceeding one month.

4. Security Agreement. Trust
or intends this Deed of Trust to create a lien on the
Property, and an absolute assignment of the Rents and Leases, all in favor of Beneficiary. To the extent that any Property may be or be determined to be personal property, Trustor as debtor hereby grants to Beneficiary as secured party a security interest in all such Property to secure payment and performance of the Secured Obligations. This Deed of Trust constitutes a security agreement under the California Uniform Commercial Code, as amended or recodified from time to time (the “UCC”), covering all such Property. To the extent such Property is not real property encumbered by the lien granted above, and is not absolutely assigned by the assignment set forth above, Trustor intends that such Property shall constitute "proceeds, products, offspring, rents, or profits" (as defined in and for the purposes of Section 552(b) of the United States Bankruptcy Code, as such section may be modified or supplemented) of the Land and Improvements.

5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby authorizes Beneficiary, as secured party, to file such financing statements and amendments thereof and such continuation statements with respect thereto as Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest in the Property and Rents, without requiring any signature or further authorization by Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs that Beneficiary may incur in filing such documents in public offices and in obtaining such record searches as Beneficiary may reasonably require. If any financing statement or other document is filed in the records normally pertaining to personal property, that filing shall not be construed as in any way derogating from or impairing this Deed of Trust or the rights or obligations of the parties under it.

6. Fixture Filin
g. This Deed of Trust is intended to be and constitutes a fixture filing pursuant to the provisions of the UCC with respect to all of the Property constituting fixtures, is being recorded as a fixture financing statement and filing under the UCC,

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and covers property, goods and equipment which are or are to become fixtures related to the Land and the Improvements. Trustor covenants and agrees that this Deed of Trust is to be filed in the real estate records of Alameda County and shall also operate from the date of such filing as a fixture filing in accordance with Section 9502 and other applicable provisions of the UCC. This Deed of Trust shall also be effective as a financing statement covering minerals or the like (including oil and gas) and accounts subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.

7. Trustor’s Representations, Warranties and Covenants; Rights and Duties of the Parties.

7.1 Representations and Warranties. Trustor represents and warrants that:
(i) Trustor lawfully possesses and holds a fee interest in the Land, (ii) Trustor has good and marketable title to all of the Property; (iii) other than as limited by the City Documents, Trustor has the full and unlimited power, right and authority to encumber the Property with this Deed of Trust and assign the Rents as contemplated herein; (iv) subject only to encumbrances of record and senior liens permitted pursuant to the City Documents, or otherwise approved in writing by Beneficiary (“Permitted Encumbrances”), this Deed of Trust creates a valid lien on Trustor’s entire interest in the Property free and clear of all deeds of trust, mortgages, security agreements, reservations of title or conditional sales contracts, (v) there is no financing statement affecting the Property on file in any public office other than as disclosed in writing to Beneficiary; and (vi) the correct address of Trustor’s chief executive office is specified in Section 10.2.

7.2 Condition of Property. Trustor represents and warrants that except as disclosed to Beneficiary in writing, as of the date hereof: (i) Trustor has not received any notice from any governmental authority of any threatened or pending zoning, building, fire, or health code violation or violation of other governmental regulations concerning the Property that has not previously been corrected, and (ii) all information that Trustor has delivered to Beneficiary, either directly or through Trustor's agents, is accurate and complete.

7.3 Authority. Trus
tor represents and warrants that this Deed of Trust and all other documents delivered or to be delivered by Trustor in connection herewith: (a) have been duly authorized, executed, and delivered by Trustor; (b) are binding obligations of Trustor; and (c) do not violate the provisions of any agreement to which Trustor is a party or which affects the Property. Trustor further represents and warrants that there are no pending, or to Trustor’s knowledge, threatened actions or proceedings before any court or administrative agency which may adversely affect Trustor’s ownership of, or interest in, the Property or part thereof.

7.4 Payment and Performance of Secured Obligations. Trustor shall promptly
pay when due the principal and all interest due on the indebtedness evidenced by the Note, and shall promptly pay and perform all other obligations of Trustor arising in

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connection with the Secured Obligations or the City Documents in accordance with the respective terms thereof.

7.5 Use of Loan Proceeds; Preservation and Maintenance of Property; Compliance with Laws. Trustor covenants that it shall use the proceeds of the Loan (the “Loan Proceeds”) solely for purposes authorized by the City Documents. Trustor covenants that it shall keep the Land and Improvements in good repair and condition, and from time to time shall make necessary repairs, renewals and replacements thereto so that the Property shall be preserved and maintained. Trustor covenants that it shall comply with all federal, state and local laws, regulations, ordinances and rules applicable to the Property, including without limitation all applicable requirements of state and local building codes and regulations, all applicable Prevailing Wage Laws, and all applicable statutes and regulations relating to accessibility for the disabled. Trustor shall not remove, demolish or materially alter any Improvement without Beneficiary’s consent, shall complete or restore promptly and in good and workmanlike manner any building, fixture or other improvement which may be constructed, damaged, or destroyed thereon, and shall pay when due all claims for labor performed and materials furnished therefor. Trustor shall use the Land and the Improvements solely for purposes authorized by the City Documents, shall not commit or allow waste of the Property, and shall not commit or allow any act upon or use of the Property which would violate any applicable law or order of any governmental authority, nor shall Trustor bring on or keep any article on the Property or cause or allow any condition to exist thereon which could invalidate or which would be prohibited by any insurance coverage required to be maintained on the Property pursuant to the City Documents.

7.6 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be an Event of Default hereunder if the Property or any part thereof or interest therein is sold, assigned, conveyed, transferred, hypothecated, leased, licensed, or encumbered in violation of the City Documents or if any other Transfer (as defined in the Regulatory Agreement) occurs in violation of the City Documents. If any such Transfer shall occur in violation of such requirements, without limiting the provisions of Section 8 hereof, all obligations secured by this Deed of Trust, irrespective of the maturity dates of such obligations, shall at the option of Beneficiary, and without demand, immediately become due and payable, subject to any applicable cure period.

7.7 Inspections
; Books and Records. Beneficiary and its agents and
representatives shall have the right at any reasonable time upon reasonable notice to enter upon the Land and inspect the Property to ensure compliance with the City Documents. Trustor shall maintain complete and accurate books of account and other records (including copies of supporting bills and invoices) adequate to document the use of the Loan Proceeds and the operation of the Property, together with copies of all written contracts, Leases and other instruments which affect the Property. The books, records, contracts, Leases and other instruments shall be subject to examination and inspection by Beneficiary at any reasonable time following at least two (2) business days prior notice.

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7.8 Charges, Liens, Taxes and Assessments. Trustor shall pay before delinquency all taxes, levies, assessments and other charges affecting the Property that are (or if not paid may become) a lien on all or part of the Property. Trustor may, at Trustor’s expense, contest the validity or application of any tax, levy, assessment or charge affecting the Property by appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence, provided that (i) Beneficiary is reasonably satisfied that neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor shall have posted a bond or furnished other security as may reasonably be required from time to time by Beneficiary; and provided further that Trustor shall timely make any payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.

7.9 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances, whether released of record or not, which are discharged in whole or in part by Beneficiary in accordance with this Deed of Trust.

7.10 Hazard, Liability and Workers’ Compensation Insurance. At all times during the term hereof, at Trustor’s expense, Trustor shall keep the Improvements and personal property now existing or hereafter located on the Property insured against loss by fire, vandalism and malicious mischief by a policy of standard fire and extended all- risk insurance. The policy shall be written on a full replacement value basis and shall name Beneficiary as loss payee as its interest may appear. The full replacement value of the improvements to be insured shall be determined by the company issuing the policy at the time the policy is initially obtained. Not more frequently than once every two (2) years, either the Trustor or the Beneficiary shall have the right to notify the other party that it elects to have the replacement value redetermined by the insurance company. Subject to the rights of any senior lienholder, the proceeds collected under any insurance policy may be applied by Beneficiary to any indebtedness secured hereby and in such order as Beneficiary may determine, or at the 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.

7.10.1 Trustor shal
l at all times during the term hereof, maintain insurance coverage in the amounts and in accordance with the requirements specified in the City Documents, and shall otherwise comply with all requirements pertaining to insurance specified in the City Documents.

7.10.2 Trustor shall file with Beneficiary prior to the commencement of the term hereof, certificates (or such other proof as Beneficiary may require, including without limitation, copies of the required insurance policies) evidencing each of the insurance policies and endorsements thereto as required by this Section, and such certificates (or policies) shall provide that at least thirty (30) days’ prior written notice shall be provided to Beneficiary prior to the expiration, cancellation or change in coverage under each such policy.

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7.10.3 If any insurance policy required hereunder is canceled or the coverage provided thereunder is reduced, Trustor shall, within five (5) days after receipt of written notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with Beneficiary a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, Beneficiary may, with notice and at its option, procure such insurance coverage at Trustor’s expense, and Trustor shall promptly reimburse Beneficiary for such expense upon receipt of billing from Beneficiary.

7.10.4 The insurance policies required hereunder shall be issued by insurance companies authorized to do business in the State of California with a financial rating of at least A VII status as rated in the most recent edition of Best's Key Rating Guide. Each policy of insurance shall contain an endorsement requiring the insurer to provide at least thirty (30) days written notice to Beneficiary prior to change in coverage, cancellation or expiration thereof.

7.11 Hazardous Materials. Trustor shall not cause or permit any Hazardous Material (as defined below) to be brought upon, kept, stored or used in, on, under, or about the Land by Trustor, its agents, employees, contractors or invitees except for incidental supplies ordinarily used in connection with the construction, rehabilitation, repair, and operation of multi-family residential developments and in compliance with all applicable laws, and shall not cause any release of Hazardous Materials into, onto, under or through the Land. If any Hazardous Material is discharged, released, dumped, or spilled in, on, under, or about the Land and results in any contamination of the Land or adjacent property, or otherwise results in the release or discharge of Hazardous Materials in, on, under or from the Land, Trustor shall promptly take all actions at its sole expense as are necessary to comply with all Environmental Laws (as defined below).

To the greatest extent permitted by law, Trustor s
hall indemnify, defend (with
counsel reasonably acceptable to Beneficiary), and hold Beneficiary and its elected and appointed officials, officers, agents and employees (collectively, “Indemnitees”) harmless from and against any and all loss, claim, liability, damage, demand, judgment, order, penalty, fine, injunctive or other relief, cost, expense (including reasonable fees and expenses of attorneys, expert witnesses, and other professionals advising or assisting Beneficiary), action, or cause of action (all of the foregoing, hereafter individually “Claim” and collectively “Claims”) arising in connection with the breach of Trustor’s covenants and obligations set forth in this Section 7.11 or otherwise arising in connection with the presence or release of Hazardous Materials in, on, under, or from the Property, provided that no Indemnitee shall be entitled to indemnification under this Sectio
n for matters caused by such Indemnitee's gross negligence or willful misconduct.

The foregoing indemnity includes, without limitation, all costs of investigation, assessment, containment, removal, remediation of any kind, and disposal of Hazardous Materials, all costs of determining whether the Land is in compliance with Environmental Laws, all costs associated with bringing the Land into compliance with all applicable

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Environmental Laws, and all costs associated with claims for damages or injury to persons, property, or natural resources.

Without limiting the generality of the foregoing, Trustor shall, at Trustor’s own cost and expense, do all of the following:
a. pay or satisfy any judgment or decree that may be entered against any Indemnitee or Indemnitees in any legal or administrative proceeding incident to any matters against which Indemnitees are entitled to be indemnified under this Deed of Trust;
b. reimburse Indemnitees for any expenses paid or incurred in connection with any matters against which Indemnitees are entitled to be indemnified under this Deed of Trust; and
c. reimburse Indemnitees for any and all expenses, including without limitation out-of-pocket expenses and fees of attorneys and expert witnesses, paid or incurred in connection with the enforcement by Indemnitees of their rights under this Deed of Trust, or in monitoring and participating in any legal or administrative proceeding.

Trustor’s obligation to indemnify the Indemnitees shall not be limited or impaired by any of the following or by any failure of Trustor to receive notice of or consideration for 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 the City Documents limiting Beneficiary's recourse to property securing the Secured Obligations, or limiting the personal liability of Trustor, or any other party for payment of all or any part of the Secured Obligations; (iv) the accuracy or inaccuracy of any representation and warranty made by Trustor under this Deed of Trust or by Trustor or any other party under any City Document, (v) the release of Trustor or any other person, by Beneficiary 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 the Secured Obligations; and (vii) Beneficiary’s failure to properly perfect any lien or security interest given as security for the Secured Obligations.

Notwithstanding any contrary provision hereof, the indemnity provided in this Secti
on 7.11 shall not apply to Claims arising in connection with or resulting from Hazardous Materials present on the Land or in the Improvements prior to the Effective Date except Claims resulting from or arising in connection with the negligent act or omission of Trustor.

The provisions of this Section 7. 11 shall be in addition to any and all other obligations and liabilities that Trustor may have under applicable law, and each Indemnitee shall be entitled to indemnification under this Section without regard to whether Beneficiary or that Indemnitee has exercised any rights against the Property or any other security, pursued any rights against any guarantor or other party, or pursued any other rights available under any City Document or applicable law. The obligations

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of Trustor to indemnify the Indemnitees under this Section shall survive any repayment or discharge of the Secured Obligations, any foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the lien of this Deed of Trust.

Without limiting any of the remedies provided in this Deed of Trust, Trustor acknowl
edges and agrees that each of the provisions in this Section 7.11 is an environmental provision (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by Trustor relating to real property security (the “Environmental Provisions”), and that Trustor's failure to comply with any of the Environmental Provisions will be a breach of contract that will entitle Beneficiary to pursue the remedies provided by Section 736 of the California Code of Civil Procedure (“Section 736”) for the recovery of damages and for the enforcement of the Environmental Provisions. Pursuant to Section 736, Beneficiary's action for recovery of damages or enforcement of the Environmental Provisions shall not constitute an action within the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure. “Hazardous Materials” mea
ns any substance, material or waste which is or
becomes regulated by any federal, state or local governmental authority, and includes without limitation (i) petroleum or oil or gas or any direct or indirect product or by- product thereof; (ii) asbestos and any material containing asbestos; (iii) any substance, material or waste regulated by or listed (directly or by reference) as a “hazardous substance”, “hazardous material”, “hazardous waste”, “toxic waste”, “toxic pollutant”, “toxic substance”, “solid waste” or “pollutant or contaminant” in or pursuant to, or similarly identified as hazardous to human health or the environment in or pursuant to, the Toxic Substances Control Act [15 U.S.C. Section 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. Section 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder; (iv) any substance, material or waste which is defined as such or regulated by any “Superfund” or “Superlien” law, or any Environmental Law; or (v) any other substance, material, chemical, waste or pollutant identified as hazardous or toxic and regulated under any other federal, state or local environmental law, including without limitation, asbestos, polychlorinated biphenyls, petroleum, natural gas and synthetic fuel products and by-products.

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“Environmental Law” means all federal, state or local statutes, ordinances, rules, regulations, orders, decrees, judgments or common law doctrines, and provisions and conditions of permits, licenses and other operating authorizations regulating, or relating to, or imposing liability or standards of conduct concerning (i) pollution or protection of the environment, including natural resources; (ii) exposure of persons, including employees and agents, to any Hazardous Material (as defined above) or other products, raw materials, chemicals or other substances; (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities; (iv) the manufacture, use or introduction into commerce of chemical substances, including without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous substances or Hazardous Materials or the remediation of air, surface waters, groundwaters or soil, as now or may at any later time be in effect, including but not limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C.

Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder.

7.12 Notice of Claims; Defense of Security; Reimbursement of Costs. a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within five business days of the occurrence of such loss. Trustor shall ensure that Beneficiary shall receive timely notice of, and shall have a right to cure, any default under any other financing document or other lien affecting the Property and shall use best efforts to ensure that provisions mandating such notice and allowing such right to cure shall be included in all such documents. Within three business days of Trustor’s receipt thereof, Trustor shall provide Beneficiary with a copy of any notice of default Trustor receives in connection with any financing document secured by the Property or any part thereof. b. Defense of Security. At Trustor's sole expense, Trustor shall protect, preserve and defend the Property and Trustor’s interest in and right of possession of the Property, the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse claims.

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c. Compensation; Reimbursement of Costs. Trustor agrees to pay all reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service that Beneficiary or Trustee may render in connection with this Deed of Trust, including without limitation, fees and expenses related to provision of a statement of obligations or related to a reconveyance. Trustor further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances which may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this Deed of Trust, including without limitation any rights or remedies afforded to Beneficiary or Trustee or both of them under Sections 7.18 and 8.2, whether or not any lawsuit is filed, or in defending any action or proceeding arising under or relating to this Deed of Trust, including reasonable attorneys’ fees and other legal costs, costs of any disposition of the Property under the power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of title.
d. Notice of Changes. Trustor shall give Beneficiary prior written notice of any change in the address of Trustor and the location of any property, including books and records pertaining to the Property.

7.13 Indemnification. To the greatest extent permitted by law, Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold harmless the Trustee and the Indemnitees (as defined in Section 7.11) from and against all Claims arising directly or indirectly in any manner in connection with or as a result of (a) any breach of Trustor’s covenants under any City Document, (b) any representation by Trustor in any City Document which proves to be false or misleading in any material respect when made, (c) injury or death to persons or damage to property or other loss occurring on the Land or in any improvement located thereon, whether caused by the negligence or any other act or omission of Trustor or any other person or by negligent, faulty, inadequate or defective design, building, construction or maintenance or any other condition or otherwise, (d) any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, brought or asserted against any Indemnitee which relates to or arises out of the Property, or any City Document or any transaction contemplated thereby, or any failure of Trustor to comply with all applicable state, federal and local laws and regulations applicable to the Property; provided however, the indemnity provided hereunder shall not extend to Claims to the extent arising as a result of the gross negligence or willful misconduct of th e Indemnitees. The
obligations of Trustor under this Section shall survive the repayment of the Loan and shall be secured by this Deed of Trust. Notwithstanding any contrary provision contained herein, the obligations of Trustor under this Section shall survive any foreclosure proceeding, any foreclosure sale, any delivery of a deed in lieu of foreclosure, and any release or reconveyance of this Deed of Trust.

7.14. Limitation of Liability. B
eneficiary shall not be directly or indirectly liable to Trustor or any other person as a consequence of any of the following: (i) Beneficiary's exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary in this Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any obligation or liability of Trustor under any agreement related to the Property or under this Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or

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any third parties, or any dangerous or defective condition of the Property; or (iv) any loss sustained by Trustor or any third party resulting from any act or omission of Beneficiary in managing the Property after an Event of Default, except to the extent arising from the willful misconduct or gross negligence of Beneficiary. Trustor hereby expressly waives and releases all liability of the types described in this Section 7.14 and agrees that Trustor shall assert no claim related to any of the foregoing against Beneficiary.

7.15 Insurance and Condemna
tion Proceeds. Subject to the rights of any
senior lienholders, any award of damages in connection with any condemnation for public use of, or injury to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply such moneys to any indebtedness secured hereby in such order as Beneficiary may determine, or at the 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.

7.16 Release, Extension, Modification. At any time and from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust and the Note for endorsement, Trustee may release or reconvey all or any part of the Property, consent to the making of any map or plat of the Land or part thereof, join in granting any easement or creating any restriction affecting the Property, or join in any extension agreement or other agreement affecting the lien or charge hereof. At any time and from time to time, without liability therefor and without notice, Beneficiary may (i) release any person liable for payment of any Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of payment of any Secured Obligation; (iii) accept additional real or personal property of any kind as security for any Secured Obligation, or (iv) substitute or release any property securing the Secured Obligations.

7.17 Reconveyance. Upon writt
en request of Beneficiary stating that all of the
Secured Obligations have been paid in full, and upon surrender of this Deed of Trust, and the Note, Trustee shall reconvey, without warranty, the Property or so much of it as is then held under this Deed of Trust. The recitals in any reconveyance executed under this Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness thereof. Trustor shall pay all fees of Trustee and all recordation fees related to such reconveyance.

7.18 Cure; Prot
ection of Security. Upon the occurrence of an Event of Default, either Beneficiary or Trustee may cure any breach or default of Trustor if Trustor fails to do so within the applicable cure period, and if it chooses to do so in connection with any such cure, Beneficiary or Trustee may also enter the Property and/or do any and all other things which it may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: appearing in and/or defending any action or proceeding which purports to affect the security of, or the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim of lien which in

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Beneficiary’s or Trustee’s sole judgment is or may be senior in priority to this Deed of Trust, such judgment of Beneficiary or Trustee to be conclusive as among Beneficiary, Trustee and Trustor; obtaining insurance and/or paying any premiums or charges for insurance required to be carried hereunder; otherwise caring for and protecting any and all of the Property; and/or employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary or Trustee. Beneficiary and Trustee may take any of the actions permitted under this Section 7.18 either with or without giving notice, except for notices required under applicable law. Any amounts disbursed by Beneficiary pursuant to this paragraph shall become additional indebtedness secured by this Deed of Trust.

8. Default and Remedies.

8.1 Events of Default. Trustor acknowledges and agrees that an Event of Default shall occur under this Deed of Trust upon the occurrence of any one or more of the following events:
a. Benef iciary
’s declaration of an Event of Default under any City
Document, subject to the expiration of any applicable cure period set forth in such document;
b. Trustor fails to perform any monetary obligation which arises under this Deed of Trust or any other City Document, and does not cure that failure within ten (10) days following written notice from Beneficiary or Trustee; c. If Trustor’s interest in the Property or any part thereof is voluntarily or invol
untarily sold, transferred, leased, encumbered, or otherwise conveyed in violation of Section 7.6 hereof or if any other Transfer occurs in violation of the City Documents;
d. Trustor fails to maintain the insurance coverage required by the City
Documents and fails to cure such default within five (5) days, or Developer otherwise fails to comply with the requirements pertaining to insurance set forth in Section 7.10 hereof or in the City Documents, and Trustor fails to cure such default within the applicable cure period specified in Section 7.10 or in the City Documents, as applicable;
e. Subject to Trustor’s right to contest such charges as provided herein, T
rustor fails to pay taxes or assessments due on the Land or the Improvements or fails to pay when due any other charge that may result in a lien on the Land or the Improvements, and Trustor fails to cure such default within twenty (20) days of the date of delinquency, but in all events prior to the date upon which the holder of any such lien has the right to pursue foreclosure thereof;
f. Any representation or warranty of Trustor contained in or made in connection with this Deed of Trust or in any other City Document, or made in connection with the execution and delivery of any certificate or statement furnished by or on behalf

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of Trustor in connection with the Loan proves to have been false or misleading in any material adverse respect when made;
g. If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Trustor (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Trustor in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due; h. If a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Trustor in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Trustor or substantially all Trustor’s assets, (iii) orders the liquidation of Trustor, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the Property or any part thereof, and in each case the order or decree is not released, vacated, dismissed or fully bonded within ninety (90) days after its issuance; i. The holder of any other debt instrument secured by a mortgage or deed of trust on the Property or part thereof declares an event of default thereunder and exercises a right to declare all amounts due under that debt instrument immediately due and payable, subject to the expiration of any applicable cure period set forth in such holder’s documents; or
j. Trustor fails to perform any obligation arising under this Deed of Trust
other than one enumerated in this Section 8.1, and does not cure that failure either within thirty (30) days after written notice from Beneficiary or Trustee in the event of a monetary default, or within sixty (60) days after such written notice in the event of a nonmonetary default, provided that in the case of a nonmonetary default that in Beneficiary’s reasonable judgment cannot reasonably be cured within sixty (60) days, an Event of Default shall not arise hereunder if Trustor commences to cure such default within sixty (60) days and thereafter prosecutes such cure to completion with due diligence and in good faith.

8.2 Remedies. Subj
ect to the applicable notice and cure provisions set forth herein, at any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all of the rights and remedies described below, and may exercise any one or more or all, of the remedies set forth in any City Document, and any other remedy existing at law or in equity or by statute. All of Beneficiary’s rights and remedies shall be cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. Beneficiary shall be entitled to collect all expenses incurred in pursuing the remedies provided hereunder, including without limitation reasonable attorneys’ fees and costs.

EXHIBIT C

EXHIBIT A
52 88
a. Acceleration. Beneficiary may declare any or all of the Secured Obligations, including without limitation all sums payable under the Note and this Deed of Trust, to be due and payable immediately.
b. Receiver. Benef iciary may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property. c. Entry. Benef iciary, in person, by agent or by court-appointed receiver, may enter, take possession of, manage and operate all or any part of the Property, and may also do any and all other things in connection with those actions that Beneficiary may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: taking and possessing copies of all of Trustor’s or the then owner's books and records concerning the Property; entering into, enforcing, modifying, or canceling Leases on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and receiving any payment of money owing to Trustor; completing any unfinished construction; and/or contracting for and making repairs and alterations. If Beneficiary so requests, Trustor shall assemble all of the Property that has been removed from the Land and make all of it available to Beneficiary at the site of the Land.

Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney-in- fact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor's name on any instruments. d. UCC Remedie
s. Beneficiary may exercise any or all of the
remedies granted to a secured party under the UCC.
e. Judicial Action. Be neficiary may bring an action in any court of competent jurisdiction to foreclose this Deed of Trust in the manner provided by law for foreclosure of mortgages on real property and/or to obtain specific enforcement of any of the covenants or agreements of this Deed of Trust.
f. Power of Sale. U
nder the power of sale hereby granted,
Beneficiary shall have the discretionary right to cause some or all of the Property, including any Property which constitutes personal property, to be sold or otherwise disposed of in any combination and in any manner permitted by applicable law.

8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby granted, Beneficiary shall execute or cause the Trustee to execute a written notice of such default and of its election to cause the Property to be sold to satisfy the obligations hereof, and shall cause such notice to be recorded in the office of the Recorder of each County wherein the Property or some part thereof is situated as required by law and this Deed of Trust.

Prior to publication of
the notice of sale, Beneficiary shall deliver to Trustee this Deed of Trust and the Note or other evidence of indebtedness which is secured hereby,

EXHIBIT C

EXHIBIT A
53 89
together with a written request for the Trustee to proceed with a sale of the Property, pursuant to the provisions of law and this Deed of Trust.

Notice of sale having been given as then required by law, and not less than the time then required by law having elapsed after recordation of such notice of default, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in the 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, and at Beneficiary’s request shall, postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Trustee shall deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary, may purchase at such sale.

After deducting all costs, fees, and expenses of Trustee and of the trust hereby created, including reasonable attorneys’ fees in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary or Trustee under the terms hereof and all outstanding sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto.

Without limiting the generality of the foregoing, Trustor acknowledges and agrees that regardless of whether or not a default has occurred hereunder, if an Event of Default has occurred under the City Documents, and if in connection with such Event of Default Beneficiary exercises its right to foreclose on the Property, then: (i) Beneficiary shall be entitled to declare all amounts due under the Note immediately due and payable, and (ii) the proceeds of any sale of the Property in connection with such foreclosure shall be used to pay all Secured Obligations, including without limitation, the outstanding principal balance and all other amounts due under the Note.

At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary, may bid for and acquire the Property or any part of it to the extent permitted by then applicable law. Instead of paying cash for such property, Beneficiary may settle for the purchase price by crediting the sales price of the property against the following obligations:
a. First, the portion of the Secured Obligations attributable to the expenses
of sale, costs of any action and any other sums for which Trustor is obligated to pay or reimburse Beneficiary or Trustee under Section 7.12(c); and b. Second, the remaining balance of all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose.

8.4 Trustor’s Right to Reinstate. Notwithstanding Beneficiary’s acceleration of the sums secured by this Deed of Trust, Trustor shall have the right to have any

EXHIBIT C

EXHIBIT A
54 90
proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under the City Documents if the Secured Obligations had no acceleration provision; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies as provided herein, including, but not limited to, reasonable attorney’s fees; and (d) Trustor takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary’s interest in the Property and Trustor’s obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.

9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all statutes of limitations as a defense to any action or proceeding brought against Trustor by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be enacted providing for any appraisement, valuation, stay, extension, redemption or moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind.

10. Miscellaneous Provisions.

10.1 Additional Provisions. The City Documents grant further rights to Beneficiary and contain further agreements and affirmative and negative covenants by Trustor which apply to this Deed of Trust and the Property.

10.2 Notices. Trus
tor requests that a copy of notice of default and notice of sale be mailed to Trustor at the address set forth below. That address is also the mailing address of Trustor as debtor under the UCC. Beneficiary’s address set forth below is the address for Beneficiary as secured party under the UCC. Except for any notice required under applicable law to be given in another manner, all notices to be sent pursuant to this Deed of Trust 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: (a) personal delivery, in which case notice shall be deemed delivered upon receipt; (b) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the United States mail; or (c) nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) day after deposit with such courier.

EXHIBIT C

EXHIBIT A
55 91
Beneficiary: City of Livermore
City Hall
1052 South Livermore Avenue
Livermore, CA 94550-4899
Attention: Housing and Human Services Manager

With a copy to: City of Livermore
City Hall
1052 South Livermore Avenue
Livermore, CA 94550-4899
Attention: City Manager

Trustor: Tri-Valley REACH, Inc.

P.O. Box 5564
Pleasanton, CA 94566
Attention: Board President

10.3 Binding on S
uccessors. The terms, covenants and conditions of this Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary and Trustee; provided however this Section 10.3 does not waive the provisions of Section 7.6.

10.4 Substitution of Trustee. Beneficiary may from time to time or at any time substitute a trustee or trustees to execute the trust hereby created, and when any such substitution has been filed for record in the office of the Recorder of Alameda County, it shall be conclusive evidence of the appointment of such trustee or trustees, and such new trustee or trustees shall succeed to all of the powers and duties of the Trustee named herein.

10.5 Attorneys’ Fees and Costs. In any act
ion or proceeding to foreclose this
Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to Beneficiary and Trustee all costs of such action or proceeding, including reasonable attorneys’ fees.

10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be governed by the laws of the State of California without regard to principles of conflicts of laws. Trustor agrees that any controversy arising under or in relation to this Deed of Trust shall be litigated exclusively in Alameda County, California. If any provision of this Deed of Trust is held unenforceable or void, that provision shall be deemed severable from the remaining provisions, and shall in no way affect the validity of this Deed of Trust. The captions used in this Deed of Trust are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained.

In this Deed of Trust, whenever the context so requires, the singular number includes the plural.

EXHIBIT C

EXHIBIT A
56 92

10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any obligation of Trustor hereunder must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to any act or omission by Trustor shall not be construed as a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary’s or Trustee’s consent to be obtained in any future or other instance. No amendment to or modification of this Deed of Trust shall be effective unless and until such amendment or modification is in writing, executed by Trustor and Beneficiary. Without limiting the generality of the foregoing, Beneficiary’s acceptance of payment of any sum secured hereby after its due date shall not constitute a waiver by Beneficiary of its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.

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

10.9 Joint and Several Liability. If Trustor consists of more than one person or entity, each shall be jointly and severally liable for the faithful performance of all of Trustor’s obligations under this Deed of Trust.

10.10 Time is of the Essence. Time
is of the essence for each provision of this
Deed of Trust.

SIGNATURES ON FOLLOWING PAGE.

EXHIBIT C

EXHIBIT A
57 93
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first written above.

TRUSTOR:

Tri-V
alley REACH, Inc., a California nonprofit public benefit corporation By
:____________________________
Pr
int Name:_Patri ck O’Brien________
Tit
le:__Treasurer, Boa rd of Directors_
SIG
NATURES MUST BE NOTARIZED.

EXHIBIT C

EXHIBIT A
58 94

ACKNOWLEDGMENT

State of California )
) ss
County of Alameda )

On , bef
ore me, _____________________________________,
(Name of Notary)

notary publ
ic, 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.

EXHIBIT C

EXHIBIT A
59 95
Exhibit A
Legal
Description
THE

LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF

LIVERMORE, IN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

Lots
28 as shown on the final map of Tract 7724 filed for record on August 10, 2015, in Book 333 of Maps, at Pages 48 through 52, inclusive, in the Official Records of the County of Alameda, State of California.

APN: 99-1388-42

EXHIBIT C

EXHIBIT A
60 96

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Livermore
1052 South Livermore Ave.

Livermore, CA 94550
Attention: City Clerk
EXEM

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

APN: 99-1388-42
AFFORD

ABLE HOUSING REGULATORY AGREEMENT
AND

DECLARAT

ION OF RESTRICTIVE COVENANTS
by and bet
ween

THE CITY

OF LIVERMORE
and

TRI-VALLE
Y REACH, Inc.
_______________, 2023

EXHIBIT D

EXHIBIT A
61 97
This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into effective as of _______________, 2023 (“Effective Date”) by and between the City of Livermore, a municipal corporation (“City”) and Tri-Valley REACH, Inc., a California nonprofit public benefit corporation (“Owner”). The City and the Owner are collectively referred to herein as the “Parties.”

R E C I

T A L S
A. Owner is the owner of or has the right to acquire the real property located in the City of Livermore, Alameda County, California, consisting of one (1) townhouse condominium unit, located within a multifamily residential building located at 772 Camden Common, Livermore CA, known as Alameda County Assessor Parcel No. APN: 99-1388-42, and more particularly described in Exhibit A attached hereto (the “Property”).

B. City and Owner have entered into an Affordable Housing Loan Agreement (HOME Funds), dated as of ________________, 2023 (the “Loan Agreement”). The Loan Agreement provides that the Property will be required to be rented to Eligible Households at Affordable Rents in accordance with this Agreement for a period of not less than fifty-five (55) years.

C. Subject to the terms and conditions set forth in the Loan Agreement, City has agreed to provide a loan to Owner in the original principal amount of Three Hundred Thousand Dollars ($300,000.00) (the “Loan”) in HOME funds to assist Owner in acquiring the Property.

As a condition precedent to the funding of the Loan, City requires the Property to be subject to the terms, conditions and restrictions set forth herein.

D. Pursuant to the Loan Agreement, Owner shall execute and deliver to City a Secured Promissory Note (the “Note”) to evidence Owner’s obligation to repay the Loan. The Note shall be secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing that shall be executed by Owner for the benefit of City (the “Deed of Trust”) and recorded against the Property substantially concurrently herewith.

E. The purpose of this Agreement is to s atisfy the affordability requirements of the HOME program and to regulate and restrict the occupancy and rents of the Property for the benefit of the Property’s occupants. 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. Definitions. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits.
"Affordable Rent" means that the maximum rent for each tenant occupying an individual bedroom in the Property shall not exceed 75% of the HOME fair market rent (FMR) allowable for Extremely Low-Income households in a zero-bedroom studio unit as specified

EXHIBIT D

EXHIBIT A
62 98
further in the qualifications for rental housing for the HOME Program described under Title 24, Subtitle A, Part 92 Subpart F (CFR 92.252). In absence of HUD’s published fair market rents, then Affordable Rent shall mean a monthly rent that does not exceed one-twelfth of thirty percent (30%) of Area Median Income, adjusted for a household of one (1) person, less a utility allowance and other fees and charges required to be paid by tenants of the Property on a non- optional basis. The affordable rent charged to each tenant shall be inclusive of basic utilities including electricity, gas, water, sewer and garbage, but not inclusive of telephone, cable or internet services. In any event, the total Affordable Rent received by the Owner for all tenants in the Property shall not exceed the Low HOME rent for a three-bedroom unit as applicable. “Area Median Income ” or “AMI” means the median income for Alameda County, California, as determined by HUD pursuant to Section 8 of the United States Housing Act of 1937 and as published from tim e to time by the State of California De partment of Housing and Community Development (“HCD”) in Section 6932 of Title 25 of the California Code of Regulations or successor provision published pursuant to California Health and Safety Code Section 50093(c).
“City’s Authorized Representative ” means the City Manager of the City of Livermore or her designee .
“City Documents ” means the Loan Agreement, the Note, the Deed of Trust , and this Agreement.
“Claims ” means collectively, liabilities , losses, cost s, expen ses (including w ithout limitation attor neys’ fees and costs of li tigation), claims , demands , action s, suits, judicial or administrative proceedings , penalt ies, deficienc ies, fines, order s, and damage s. “Deed of Trust” is defined in Recital D.
“Developmental Disability” shall have the meaning set forth in section 4512(a) of the California Welfare and Institutions Code.
“Eligible Household” means an individual that has a Developmental Disability and whose Gross Income upon initial occupancy does not exceed Extremely Low-Income. “Extremely Low-Income” means thirty percent (30%) of Area Median Income, Adjusted for a household of one (1) person.
“Gross Income” shall have the meaning set forth for the HOME Program in (subsection)

5.611 of Title 24 of the Code of Federal Regulations as such Section may be revised from time to time.
“HOME” means the City’s HOME program as a Participating Jurisdiction in the Alameda County HOME Consortium and a recipient of its funds under Title II of the Cranston- Gonzalez National Affordable Housing Act of 1990 (42 U.S.C. § 12721-12840) as amended, Catalog of Federal Domestic Assistance Number 14.239.

EXHIBIT D

EXHIBIT A
63 99
“HUD” means the U.S. Department of Housing and Urban Development. “Indemnitees” means collectively, the City and its elected and appointed officers, officials, employees, agents, consultants, contractors, and designated volunteers. “Loan” is defined in Recital C.
“Loan Agreement” is defined in Recital B.
“Marketing and Management Plan” is defined in Section 6.5. “Note” is defined in Recital D.
“Official Records” means the Official Records of the Alameda County Recorder. “Very Low -Income” means fifty percent (50%) of Area Median Income , Adjusted for a household of one (1) person.

2. Use and Affordability R estrictio ns. Owner hereby covenants and agrees, for itself and its successors and assigns, that throughout the term of this Agreement (as defined in Section 4.1 below), the Property shall be used solely for residential occupancy by Eligible Households in compliance with the Loan Agreement and the requirements set forth in this Agreement. 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.

2.1 S pecial Needs Housing
; Supportive Services. Owner has elected to operate the Property as special needs housing that will serve individuals with Developmental Disabilities, and as such will require the Property to be occupied or held available for occupancy by Eligible Households. To the extent applicable, the Property will be operated at all times in accordance with (a) the Unruh Act, including without limitation California Civil Code Sections 51.2, 51.3, and 51.4; (b) the federal Fair Housing Act, 42 U.S.C. Section 3607(b) and 24 CFR 100.304; (c) the California Fair Employment and Housing Act, G overnment Code Section 12900 et seq., and (d) all other applicable laws and regulations. Owner will indemnify, defend, and hold the Indemnitees harmless from all Claims arising out of Owner’s failure to comply with applicable legal requirements related to housing for persons with Developmental Disabilities. The indemnity provisions of this paragraph shall survive the expiration o r other termination of this Agreement.

Owner shall make supportive services available to re sidents of the Property and Owner
shall provide or arrange for the provision of supportive services to residents of the Property in accordance with the Plan described in Section 6.5 below.

2.2 Affordability and Occupancy Requirements. Throughout the term of this Agreement (as defined in Section 4.1 below), the individual bedrooms in the Property shall be rented at Affordable Rents to Eligible Households.

EXHIBIT D

EXHIBIT A
64 100

2.3 Incr
eased Income of Tenants. No t enant that qualifies as an Eligible Household shall be denied continued occupancy of the Property because, after admission, the Gross Income of such tenant increases to exceed the qualifying limit for Eligible Households. A tenant th at at initial occupancy qualifies as an Eligible Household shall be treated as continuing to be an Eligible Household so long as the tenant’s Gross Income does not exceed Very Low-Income.

2.4 Ren
tal Agreements; Evictions. Owne r shall use a lease or rental agreem ent in form approved by City. Tenants of the Property may only be evicted for good cause as described in 24 CFR Section 880.607.

2.5 Maxi
mum Occupancy. Occupanc y of each bedroom in the Property shall be limited to a maximum of one (1) person, and total occupancy of the Property shall be limited to a maximum of three (3) persons.

2.6 Non-Discrimination; Compliance with Fair Housing Laws.

2.6.1 Fair Housing; Section 8 Vouchers. Owner shall comply with state and federal fair housing laws in the marketing and rental of the Property. 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.

2.6.2 Non-Discr imination. Owner covenants for itself, its successors and assigns, and all persons claiming under or through Owner, that there shall be no discrimination in 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, age, or gender identity of any person. Owner covenants for itself, its successors and assigns, and all persons claiming under or through Owner, that 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 rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Owner, its successors and assigns, 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. Nothing in this Section 2.6.2 is intended to prevent the reservation of the Property for occupancy by individuals that have a Developmental Disability.

2.6.3 No Exclusion. Without limiting the generality of Secti ons 2.6.1 and 2.6.2, Owner will not exclude or discriminate against any person in the United States, on the grounds of race, color, religion, national origin, sex, sexual orientation, familial status, physical or mental

EXHIBIT D

EXHIBIT A
65 101
disability, age, or gender identity from participating in, or benefiting from, any program or activity related to the Property. Specifically, Owner will not, on the basis of any of the foregoing:
(i) Deny any s
ervice or other benefit provided under any program activity; (ii) Pr
ovide any service or other benefit which is different, or is provided in a different form from that provided to others under any program or activity; (iii) S ub
ject to segregated or separate treatment in any facility in, or in any manner or process related to receipt of any service or benefit under any program or activity; (iv) Res
trict in any way the enjoyment of any advantage or privilege enjoyed by others receiving any service or benefit under any program or activity; (v) Tre
at an individual differently from others in determining whether that individual satisfies any admission, enrollment, eligibility, membership, or other requirement or condition which individuals must meet in order to be provided any service or other benefit provided under any program or activity; or (vi) De
ny an opportunity to participate in any program or activity as an employee.

2.6.4 Mandat
ory Language in Subsequent Deeds, Leases, and Contracts. All deeds, leases, and contracts pertaining to management of the Project, made or entered into by Owner, its successors or assigns, as to any portion of the Property shall contain the following language:

In Deeds, t
he following language shall appear:
(1) Gran
tee 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.” (2) Subdi
vision (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).

EXHIBIT D

EXHIBIT A
66 102
8 In Leases, the following language shall appear:
(1) The les
see 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.
(2) Subdi
vision (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).

In C
ontracts pertaining to management of the Project, the following language, or substantially similar language prohibiting discrimination and segregation shall appear:
(1) Th
ere 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) S
ubdivision (d) of Section 51 and Section 6714 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).

3. Re
porting Requirements; Access to Information; Inspections.

3.1 Te
na nt Certification. Owner or Owner’s authorized agent shall obtain from each prospective tenant prior to initial occupancy of the Property, 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) Th
e total household Gross Income calculated in accordance with HOME Program

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9 regulations; and
(iii) The basis upon which the tenant or prospective tenant qualifies as an Eligible Household.

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 Reports ; Inspe ctions. By not later than 180 days following the Effective Date, and thereafter by not later than May 31 of each year, Owner shall submit an annual report (“Annual Report”) to the City in form attached hereto as Exhibit C, together with the additional information specified in this Section 3.2 and a certification that the Property is in compliance with the requirements of this Agreement. The Annual Report shall, at a minimum, include the following information for each occupant of the Property: (i) current rent, utility, and other charges; (ii) move-in date; (iii) documentation of source of household income; and (iv) the information required by Section 3.1. In addition, the Annual Report shall include the dates of any vacancies during the previous year.

Owner shall include with the Annual Report, an income recertification for each tenant, 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.

In addition to the information described above, the Annual Report shall include the following:
(i) A Property 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 Property as well as the amount in the Property’s reserve accounts and the amount expected to be needed for major repairs or other needs during the new fiscal year; (iv) Fi
nancial statements for the Property prepared in accordance with generally accepted accounting standards, and if requested by City, an audit by an independent certified public accountant.
(v) City
may, in its reasonable discretion, from time to time request additional or different information, and Owner shall promptly supply such information in the reports required hereunder.

3.3. Maint enance of Records.

3.3.1 O w
ner shall maintain tenant leases, income certifications and other matters related to the leasing of the Property for a period of five (5) years after the final date of

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occupancy by the tenant.

3.3.2 Re
cords 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 With a
t least 48-hours’ notice, during normal business hours, Owner shall provide City and its authorized agents and representatives access to the books, documents, and records of the Property for the purpose of making audits, examinations, excerpts and transcriptions.

3.4.2 With
at least 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 Property and to interview tenants 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 Effective Date of this Agreement, unless the parties agree to extend the term pursuant to a recorded amendment to this Agreement.

4.2 Effectiv eness 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 Property or any part thereof or interest therein, (ii) any payment, prepayment or extinguishment of the Loan or the Note, or (iii) any reconveyance of the Deed of Trust.

4.3 Reconvey ance. 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 S
uccesso rs; Covenants to Run with the Land. Owner hereby subjects its interest in the Property 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 or any part thereof or interest therein. Any successor-in-interest to Owner, including without limitation

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any purchaser, transferee or lessee of the Property (other than the tenants of the Property) 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 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 in favor of City.

6. Property Manag
ement; Repair and Maintenance; Marketing; Reserves; Supportive Services.

6.1 Management Responsibilities. Owner shall be responsible for all management functions with respe ct to the Property, 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, repl acement of capital items, and security. City shall have no responsibility for management or maintenance of the Property.

6.2 Management Entity ; Social Services Provider; Referral Agency . City shall have the right to review and approve the qualifications of (i) the management entity, (ii) the social services provider, and (iii) any agency that will verify Developmental Disability status of prospective tenants of the Property, and shall have the right to review and approve any property management agreement, social services agreement, or similar agreement executed between Owner and such entities, which approval shall not be unreasonably withheld. The contracting of management services to a management enti ty 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 Property. Any subsequent management entity or social services provider 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 Property in accordance with this Agreement, City may require Owner to contract with a qualified management agent selected by City, to operate the Property, or to make such other arrangements as City deems necessary to ensure performance of the required functions.

6.3 Repair, Maintenance and Security. Throughout the
term of this Agreement,
Owner shall at its own expense, maintain the Property 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 Property (including without limitation, the common

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areas) 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. Owner shall prevent and/or rectif y any physical deterioration of the Property and sha ll make all repairs, renewals and replacements necessary to keep the Proper ty in good condition and repair. Owner shall provide adequate security measures for the Property, including without limitation, the installation of adequate lighting and deadbolt locks. All construction/rehabilitation work and professional services for the Property 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 comply in all respects with the homeowners’ association rules and regulations and all other rules and regulations applicable to the Property. 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 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 Management Plan . Own
er shall submit for review and approval by
the City, a plan for marketing and managing the Property ("Marketing and Management Plan" or “Plan”). The Marketing and Management Plan shall address in detail how Owner plans to market the Property to prospective Eligible Households in accordance with fair housing laws and this Agreement, Owner’s tenant selection criteria, and how Owner plans to certify the eligibility of Eligible Households. The Plan shall also describe the management team and shall address how the Owner and the management entity plan to manage and maintain the Property. The Plan shall include the proposed management agreement and the form of rental agreement that Owner proposes to enter into with tenants of the Property. In addition, the Plan shall include: (i) information regarding the qualifications of the proposed social services provider that will provide services to residents of the Property, and a copy of the social services agreement, (ii) information regarding any organizations or agencies that will provide referrals of Eligible Households for prospective occupancy of the Property, and (iii) the supportive social services that will be provided to tenants of the Property. Owner shall abide by the terms of the Marketing and Management Plan in marketing, managing, and maintaining the Property, 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 Pla n shal l address the following:

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(a) The actions t o be taken by Owner to affirmatively market the Property in compliance with fair housing laws and in compliance with City’s policies and procedures, including the policies described in Section 2.6 above; (b) Criteria for determining tenant eligibility, including certification of household income and size, Developmental Disability status or other qualifying criteria, and establishing reasonable occupancy standards (which shall not exceed the standards specified in Section 2.5, or if more restrictive, the 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 req
uirement that eligible tenants be selected based on order of application, lottery or other reasonable method approved by City; (d) A requ
irement that eligible applicants be notified of eligibility and be provided an estimate regarding when a bedroom in the Property may be available for rent;
(e) A re
quirement that ineligible applicants be notified of the reason for their ineligibility;
(f) Spec
ific procedures through which applicants deemed to be ineligible may appeal this determination;
(g) Mainte
nance of a waiting list of eligible applicants;
(h) Spec
ific procedures for obtaining documentation regarding prospective tenants’ incomes, as necessary, to certify that such income does not exceed income limits;
(i) Spec
ific procedures for certification and recertification of household incomes and procedures for handling over-income tenants; (j) A req
uirement that a written rental agreement (subject to City approval) be executed with each Eligible Household selected to occupy the Property; (k) A det
ailed 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;
(l) Inte
ntionally omitted.
(m) Intent
ionally omitted.
(n) Pro
cedures for maintenance and management of the Property;

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(o) Proc
edures for dealing with tenant or neighborhood issues or concerns; (p) Pro
cedures for maintaining a reserve account, budgeting for maintenance and repair needs as well as long-term rehabilitation needs, and handling net cash flow; (q) Such ot
her requirements and criteria/procedures as City may reasonably determine appropriate; and
(r) Owne
r’s plan for educating tenants regarding, and ensuring compliance with, the homeowners’ association rules and regulations and other regulations applicable to the Property, including without limitation, rules regarding parking, storage, and use of balconies.

6.6 App
roval of Amendments. If City has not responded to any submission of the Management and Marketing Plan, the proposed management entity, the proposed management agreement, or a proposed amendment 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.

6.7 Fees, T axes, and Other Levies. Owner shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies applicable to the Property, 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.

6.8 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.

6.9 Prop
erty Damage or Destruction. If a ny part of the Property 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 sha ll 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.

6.10 Req
uired Reser ves. Owner shall be obligated to establish and maintain an operating and replacement reserve account for the Property (“ Reserve”). The Reserve may be

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for the non-exclusive use of the Property and may include other properties in Livermore operated by the Borrower. Owner shall ensure that upon Close of Escrow, the Reserve is funded at Fifteen Thousand Dollars ($15,000). Reserve funds may be used solely for maintenance and operating expenses of the Property. Of the initial Fifteen Thousand Dollars ($15,000), Five Thousand Dollars ($5,000) must be maintained for maintenance and repair expenses as the minimum amount in the Reserve . The City’s advance written consent, which shall not be unreasonably withheld, shall be required for withdrawals from the Reserve for non- routine operating and maintenance expenses exceeding the sum of Three Thousand Dollars ($3,000). The Reserve shall be replenished from Property net operating income so t hat beginning in the fifth (5th) year, at least Five Thousand Dollars ($5,000) is maintained annually in the Reserve. Any deficit that may occur in an operating year is to be made -up in subsequent operating years until the Five Thousand Dollar ($5,000) Re serve is achieved and maintained throughout the remaining term of the City’s Loan. The maximum amount tha t can be held in the Reserve for the Property is two percent (2%) of the fair market value o f the Property as determined by the City or such other amount approved by City. City may approve a pooled reserve for Livermore properties.

6.11 No
Criminal Acti vity. Owner agrees that neither Owner nor any person resid ing on the Property, their guests or persons under their control, shall permit, engage in, or facilitate criminal activity within the Property, within the development in which the Property is located, or on the streets bordering such development. This inc ludes, without limiting the forego ing: (i) the illegal manufacture, sale, distribution, use, or possession with the intent to manufacture, sell, distribute, or use a controlled substance as defined in Section 102 of the Controlled Substa nces Act (21 U.S.C. Section 802); (ii) the unlawful discharge of firearms; and (iii) all acts or threats of violence, harming, or intending to harm a person or property.

7. Recordation; Subordination. This Agreement shall be recorded in the Official Records.

The City agrees that the City will not withhold consent to reasonable requests for subordination of this Agreement 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 Rest rictions 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 without the prior written consent of the City, which approval shall not be unreasonably withheld. In addition, 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.

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8.2 Permi tted Transfers. Notwithstanding any contrary provision of the City Documents, the prohibitions on Transfer set forth herein shall not be deemed to prevent: (i) the lease of bedrooms within the Property to tenants for occupancy as their principal residence in accordance with this Agreement; (ii) assignments creating security interests for the purpose of financing the acquisition or improvement of the Property in accordance with the Financing Plan approved in accordance with the Loan Agreement as such may be updated with City Approval, or Transfers directly resulting from the foreclosure of, or granting of a deed in lieu of foreclosure of, such a security interest; or (iii) a Transfer to a tax-exempt entity under the direct control of, or under common control with, Owner.

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, 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) and (ii) 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 manage the Property 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 effect any Transfer of all or any part of or interest in the Property 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 under the City Documents. (iv) The final form of the organizational documents of the proposed transferee, and any subsequent amendments that affect the City's economic interests under this Agreement or the City Documents shall be subject to the City’s review and approval. (v) T he Transfer and the assumption of Owner’s obligations shall be effectuated pursuant to an assignment and assumption agreement in form approved by City and recorded in the Official Records.

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 thirty (30) days following City’s receipt of written request by Owner, the proposed Transfer shall be deemed approved.

8.4 Effect o
f Transfer without City Consent. In the absence of specific written

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agreement by the City, no Transfer of the Property 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 or the Property in violation of Section 8. This Section 8.4 shall not apply to Transfers described in clauses (i) and (ii) of Section 8.2.

8.5 Recovery of City Costs. Within ten (10) days following City’s delivery to Owner of an invoice detailing such 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 effect a Transfer of this Agreement, Owner’s interest in the Property or part thereof, and in reviewing the qualifications and financial resources of a proposed successor, assignee, or transferee.

8.6 Encumbrances . Own
er agrees to cooperate with City in good faith to ensure that all deeds of trust or other security instruments and any applicable subordination agreement recorded against the Property or part thereof 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 Property without acceleration of Third- Party Lender’s debt; and (iv) City shall have the right to transfer the Property without acceleration of Third-Party Lender’s debt to a nonprofit corporation or other entity which shall own and operate the Property as affordable rental housing, 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 three (3) business days following Owner’s receipt thereof.

8.7 Mo
rtgagee Protection. No vi olation 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 all or any portion of 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. Unless this Agreement is subordinated in accordance with Section 7, 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 Property that such violation has occurred.

9. Default and Remedies.

9.1 Eve nts 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;

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(ii) Owner’s failure to maintain insurance on t he Property 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 failure to pay any other charge that may result in a lien on the Property, 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 thirty (30) days in the event of a monetary default or sixty (60) 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 sixty (60) days, Owner’s failure to commence to cure the default within sixty (60) days and thereafter prosecute the curing of such default with due diligence and in good faith to completion.

9.2 Rem
edies. 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:
(i) Br
ing 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 the Property, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Affordable Rent; or
(iv) Pursue any other remedy allowed under the City Documents or at law or in equity.

Eac
h 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

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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 (or Owner’s employees’, agents’, or contractors’) management, or operation of the Property 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.

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 2.1 and 10. In connection with each such provision, all of the following shall apply:
(a) Cit
y 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) Owne
r’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 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 obl
igations 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 Ame
ndments. This Agreement may be amended or modified only by a written instrument signed by both Parties and recorded in the Official Records. City’s Authorized Representative shall have the authority to approve amendments to this Agreement related to implementation of the HOME requirements, including but not limited to term, repayment,

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monitoring requirements, affordability, occupancy, and rent restrictions.

11.2 No Waiver. An y 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 req uire 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: Ci
ty of Livermore
Administration Building
1052 South Livermore Avenue
Livermore, CA 94550-4899
Attention: Housing and Human Services Manager
Wit
h a copy to:

Cit
y of Livermore
Administration Building
1052 South Livermore Avenue
Livermore, CA 94550-4899
Attention: City Manager
Owner
: Tri-Valley REACH, Inc.

P.O. Box 5564
Pleasanton, CA 94566
Attention: Board President

11.4 Fur
th er 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.

EXHIBIT D

EXHIBIT A
79 115

11.5 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 Property. 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.

11.6 Action by the City. Except as may be otherwise speci fical ly 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.

11.7 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.

11.8 Headings; Construction; Statu tory R eferences. 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.

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

11.10 Gover
ning 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.

11.11 A ttor
neys' Fees and Costs . If any l egal 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.

11.12 Severability. If any pr ovision of this Agreemen t is held invalid, illegal, or unenforceable by a court of competent juri sdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.

EXHIBIT D

EXHIBIT A
80 116

11.13 Entire Agreement; Exhibits. This Agr eement, 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 D, attached hereto are incorporated herein by this reference.

11.14 Survival. Owner’s obligations pursuant to Sections 2.1, and 10, and all other provisions that expressly so state, shall survive the expiration or termination of this Agreement.

11.15 No Third Party Beneficiaries. Except as expressly set forth herein, nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties and their respective successors and assigns, any rights or remedies hereunder.

11.16 Counter
parts. This Agreement may be executed in multiple counterparts, e ach of which shall be an original and all of which together shall constitute one agreement.

SIGNAT
URES ON FOLLOWING PAGE(S).

EXHIBIT D

EXHIBIT A
81 117

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

CITY:

Cit
y of Livermore, a municipal corporation
By:
_______________________________
City Manager
ATTEST:
_____________________________
City Clerk
APPR
OVED AS TO FORM:
______________________________
City A
ttorney
OWNE
R:

Tri-V
alley REACH, Inc., a California nonprofit public benefit corporation By:_______________________________
Print Name: _Patrick O’Brien__________
Title:
_Treasurer, Board of Directors_____
SIG
NATURES MUST BE NOTARIZED.

EXHIBIT D

EXHIBIT A
82 118

ACKNOW

LEDGMENT
State o
f California )
) ss
County of ___________ )
On , bef
ore me,___________________________________________,
(Nam e of Notary)
notar
y 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 c
ertify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITN
ESS 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 D

EXHIBIT A
83 119

ACKNOW

LEDGMENT
State
of California )
) ss
County of ___________ )
On , bef
ore me,___________________________________________,
(Nam e of Notary)
notar
y 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 cert
ify 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 D

EXHIBIT A
84 120

EXHIBIT D
Exhibit A

LEGAL DESCRIPTION

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF LIVERMORE, IN THE COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

EXHIBIT A
85 121
Revised 10/01/2015 B17 – R&L

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Livermore City CouncilJuly 24, 2023

Livermore City Council
July 24, 2023