(c) No Alterations shall be undertaken until Lessee shall have procured, to the extent the same may be required from time to time, all permits and authorizations of all applicable Governmental Authorities, all required consents of any Lender, and the consent of Lessor. Lessor shall not unlawfully obstruct the application for such permits or authorizations; and
(d) Any Alterations shall be performed in good and workerlike manner and in compliance with all applicable Legal Requirements and all applicable Insurance Requirements. (e) Any and all Alterations shall be consistent with the use of the Leased Premises as authorized under this Lease.
(f) Any Alteration that will exceed the sum of Two Hundred Fifty Thousand Dollars ($250,000) in cost (increasing annually by the amount of the Consumer Price Index- Urban (CPI-U) for the San Francisco-Oakland-San Jose, California metropolitan area) shall require Lessor’s advance written consent which shall not be unreasonably withheld.
Section 7.4 Indemnifications. Notwithstanding any other provision of this Lease to the contrary, and in addition to any other indemnities provided in this Lease, to the fullest extent permitted by law, Lessee hereby agrees to indemnify, protect, hold harmless and defend with counsel selected by or otherwise acceptable to Lessor) the Indemnitees from and against any and all Claims of every nature arising out of or relating to (1) Lessee’s obligations under this Lease or the (2) construction or operation of the Improvements or any Alterations except to the extent any such Claim arises from the sole active gross negligence or willful misconduct of the Indemnitees. In addition, if any contractor or subcontractor which performed any construction work for Lessee or Lessee’s affiliates on the Improvements or Alterations shall assert any Claim against Lessor or the Indemnitees on account of any damage alleged to have been caused by reason of acts of negligence of Lessee or Lessee’s affiliates, members, partners, officers, directors, affiliates, agents, employees or construction contractors, Lessee shall defend at its own expense any suit based upon such Claim; and if any judgment or claim against Lessor shall be Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
947
21 allowed, Lessee shall pay or cause to be paid or satisfied such judgment of claim and pay all costs and expenses in connection therewith. The provisions of this Section shall survive the expiration or termination of this Lease. Lessee must respond within 30 days to the tender of any claim for defense and indemnity by the City. The provisions in Section 6.4(b), (c), and (d) of this Lease apply to this obligation to defend, indemnify, and hold harmless.
ARTICLE 8
MORTGAGE LOANS
Section 8.1 Intentionally omitted.
Section 8.2 Liens and Encumbrances Against the Leasehold Estate. The Lessee shall have the right to encumber the Leasehold Estate and the Improvements with leasehold deeds of trust, mortgages, and regulatory and affordability agreements related to the Approved Loans without Lessor’s consent (collectively, “Liens”) provided that all documents evidencing such Liens other than those related to the Approved Loans reflected in the Financing Plan attached hereto, are consistent with the terms and conditions of this Lease and the Financing Plan. Lessee shall further have the right to encumber the Leasehold Estate with that certain Easement and License Agreement in substantially the form attached to Lessee’s partnership agreement subject to the City’s right to reasonably review and approve the final form of the Easement and License Agreement.
(a) For as long as there is any Lien securing any Approved Loan:
(1) Lessor shall not agree to any cancellation, termination (except for a termination for a default by Lessee which is not cured by Lessee or Lender in accordance with this Lease), or accept any surrender of this Lease, nor shall Lessor consent to any amendment or modification of this Lease without the prior written consent of the Lenders that have outstanding Approved Loans. In the event that Lessor receives competing or conflicting offers to cure any default under this Lease, Lessor shall accept the offers to cure in the following order: first, Lessee or the limited partner (or members, as applicable) therein, then each Lender in the same relative priority as their respective Liens.
(2) Notwithstanding any default by Lessee under this Lease, Lessor shall have no right to terminate this Lease or exercise any other right or remedies under this Lease unless Lessor shall have given the Lenders that have outstanding Approved Loans written notice of such default and such Lenders shall have failed to remedy such default or acquire the Leasehold Estate or commence foreclosure or other appropriate proceedings as set forth in, and within the time specified by, this Section 8.2.
(3) Any Lender that has an outstanding Approved Loan shall have the right, but not the obligation, at any time to pay any or all of the Rent, Additional Rent, or any other sums due pursuant to the terms of this Lease, and do any other act or thing required of Lessee by the terms of this Lease, to prevent termination of this Lease. Lessor shall provide each Lender that has an outstanding Approved Loan written notice of default concurrently with Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
948
22 delivery of such notice to Lessee. Each Lender shall have the same period to cure such default as afforded to Lessee, extended by an additional twenty (20) days in the case of a monetary default, and by an additional forty-five (45) days in the case of a nonmonetary default. The notice of default shall describe the action necessary to cure the default, and shall include, with respect to any monetary default, a detailed statement identifying the amounts due and the obligations to which amounts relate, and with respect to any non-monetary default, a detailed statement identifying the obligations breached and the cure expected by Lessor; provided, however, that if any nonmonetary default is not susceptible to cure within the applicable cure period, the Lender shall have such longer period, not to exceed an additional ninety (90) days, as may be necessary to cure the default, so long as such Lender is diligently prosecuting such cure to completion. All payments so made and all things so done shall be as effective to prevent a termination of this Lease as the same would have been if made and performed by Lessee instead of by the Lender(s).
(4) In addition to the cure periods described in the preceding paragraph (3), if the default is such that possession of the Leasehold Estate may be reasonably necessary to remedy the default, any Lender that has an outstanding Approved Loan shall have a reasonable time after the expiration of the applicable cure period described in the preceding paragraph (3) within which to remedy such default, provided that (A) such Lender shall have fully cured any default in the payment of any monetary obligations of Lessee under this Lease within the first sixty (60) days following Lessor’s delivery of notice pursuant to subsection (3) of this Section 8.2(a) and shall continue to pay currently such monetary obligations when the same are due; (B) such Lender shall have acquired Lessee’s Leasehold Estate hereunder or commenced foreclosure or other appropriate proceedings prior to or within 150 days following Lessor’s delivery of notice pursuant to subsection (2) of this Section 8.2(a), and shall be diligently prosecuting the same; and (C) and after acquiring possession of the Leasehold Estate, such Lender shall diligently prosecute to completion such cures as may be reasonably possible to remedy nonmonetary defaults existing under this Lease. Any default under this Lease which by its nature cannot be remedied by Lender shall be deemed remedied upon Lender or its Nominee (as hereinafter defined) acquiring Lessee’s interest in the Premises as provided in this Section and curing said default.
(5) Lessor shall promptly provide estoppel certificates reasonably requested by lenders or investors.
(6) If the Lenders are prohibited, stayed or enjoined by any bankruptcy or insolvency proceeding of any court, including without limitation a court having jurisdiction over Lessee in such proceeding, from commencing or prosecuting foreclosure proceedings, the times specified for commencing or prosecuting such foreclosure or other proceedings shall be extended for the period of such prohibition; provided that any Lender shall have fully cured any default in the payment of any monetary obligations of Lessee under this Lease, including without limitation any monetary obligations to third parties which have become, or threaten to become, liens against the Leased Premises or any portion thereof, and shall continue to pay currently such monetary obligations when the same fall due; provided, further, that, subject to subsection (1) of this Section 8.2(a), such Lender shall not interfere with Lessor’s efforts to seek compliance by Lessee with any non-monetary obligation under this Lease.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
949
23 (7) Lessor shall mail or deliver to any Lenders that have any outstanding Approved Loans a duplicate copy of any notice which Lessor may deliver to Lessee pursuant to this Lease, including any notice of default. Lessee shall deliver to Lessor the name and contact information for all Lenders that have outstanding Approved Loans, including successors in interest to Approved Loans immediately upon demand of Lessor. Provided Lessee (or Lender) has delivered Lessor the name and contact information of the Lender having an outstanding Approved Loan, no notice of default by Lessor to Lessee shall be effective as to that Lender unless and until a copy of the notice shall have been mailed or delivered to such Lender as set forth in this Section.
(8) The foreclosure of an Approved Loan, any sale thereunder, whether by judicial proceedings or by virtue of any power contained in the leasehold mortgage securing the Approved Loan, or any conveyance of the Leasehold Estate created hereby from Lessee to a Lender through or in lieu of foreclosure (a “Foreclosure Event”), shall not require the consent of Lessor or constitute a breach of any provision of this Lease. In the event any Lender or its Nominee (as defined herein) becomes Lessee under this Lease by such means or pursuant to any new lease obtained under paragraph (9) of this Section 8.2(a) below, Lessor shall recognize the Lender or its Nominee as Lessee hereunder or under such new lease and the Lender or such Nominee, as applicable, shall be personally liable under this Lease or such new lease only for the period of time that the Lender or such Nominee, as applicable, remains Lessee thereunder (and such liability shall be limited to Lender’s or Nominee’s, as applicable, interest in the Leaseholder Estate), provided that the Lender or its Nominee attorns to Lessor and agrees to be subject to the restrictions of this Lease. If a Lender or its Nominee becomes the lessee under this Lease or any such new lease, the Lender shall have the right thereafter to assign or sublease this Lease or such new lease one time, provided that any assignee: (A) shall take the Leasehold Estate subject to all of the provisions of this Lease or such new lease, and (B) shall assume and agree to perform all obligations of Lessee under this Lease. Any further assignment shall be subject to the consent of Lessor, which consent shall not be unreasonably withheld. Nothing in this Section shall be construed to obligate any Lender to remedy any default of Lessee, except except defaults that occur or continue (when such continuing defaults are susceptible to cure) during the period that the Lender is a lessee under this Lease,under the circumstances where the Lender becomes the Lessee, and any failure of any Lender to complete any such cure after commencing the same shall not give rise to any liability of any Lender to Lessor or Lessee, Lessee, except defaults that occur or continue (when such continuing defaults are susceptible to cure) during the period that the Lender is a lessee under this Lease except under the circumstances where the Lender becomes the Lessee.
(9) In the event (A) a Lender, its designee or another purchaser in foreclosure proceedings becomes the legal owner of the Leasehold Estate, (B) Lessor terminates this Lease by reason of any Event of Default (as defined herein), or (C) if the Lease is terminated for any other reason (including, without limitation, in connection with a bankruptcy proceeding) then, upon written request by Lender given within one hundred twenty (120) days after such transfer or receipt of notice of such termination of the Leasehold Estate, the City shall execute and deliver a new lease of the Leased Premises to such Lender, or its nominee, purchaser, assignee or transferee (the “Nominee”), provided that, except as provided in subsection (8) of this Section 8.2(a) if such Nominee is not the purchaser at a foreclosure sale and is not wholly owned by one or more Lenders, such Nominee is approved by Lessor in its reasonable discretion.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
950
24 Such new lease shall be substantially in the same form as this Lease, shall have a term equal to the remainder of the Lease Term with the same agreements, covenants, reversionary interests and conditions (except for any requirements which have been fulfilled by Lessee prior to termination or that is personal to Lessee) as are contained in this Lease and with priority equal to this Lease with respect to encumbrances of Lessor’s interest in the Land or the Leased Premises or encumbrances of Lessee’s interest in the Leased Premises permitted or caused by Lessor (with Lessee's and Senior Lender's prior written approval), together with any provisions legally required in the event the Nominee is a governmental entity; provided, however, that any defaults by Lessee susceptible to cure by the Lender have been cured or reasonable assurance has been provided to Lessor that such defaults shall be cured. Upon execution and delivery of such new lease by Lessor and the Nominee, the Nominee shall have acquired all the right, title and interest of Lessee under this Lease prior to its termination. Lessor, shall cooperate in taking such action as shall be necessary to cancel and discharge this Lease and to remove Lessee from the Leased Premises. After such termination and cancellation of the Lease and prior to the expiration of the period within which Lender or Nominee may elect to obtain a new lease from Lessor, Lessor shall refrain from terminating any existing sublease or otherwise encumbering the Premises without the prior written consent of Lender or Nominee. Any new lease granted hereby shall vest in Lender or Nominee all right, title, interest, power and privileges of Lessee hereunder in and to the Premises, including, without limitation, the assignment of Lessee’s interest in and to all then existing subleases and sublease rentals and the automatic vesting of title to all Improvements, fixtures and personal property of Lessee in Lender or Nominee. Lessee shall provide to Lender or Nominee and Lessor copies of any residential or commercial subleases and estoppels to disclose any obligations encumbering the Leased Premises. Such new lease shall provide, with respect to each and every permitted sublease shall be deemed to have recognized the sublessee under the sublease, pursuant to the terms of the sublease as though the sublease had never terminated but had continued in full force and effect after the termination of the Lease, and to have assumed all the obligations of the sublessor under the sublease accruing from and after the termination of the Lease, except that the obligation of the new lessee, as sublessor, under any covenant of quiet enjoyment, expressed or implied, contained in any such sublease shall be limited to the acts of such new lessee and those claiming by, under or through such new lessee.
If more than one Lender is entitled to a new lease pursuant to this subsection, Lessor shall enter into such new lease with the lender whose mortgage or deed of trust that has the highest lien priority.
(10) If a Lender or Nominee subsequently transfers its interest under this Lease after acquiring such interest by foreclosure or deed in lieu of foreclosure and, in connection with any such transfer, the transferee obtains a mortgage or deed of trust encumbering such leasehold interest to secure all or any portion of the purchase price given to the Lender or Nominee for such transfer, then such mortgage or deed of trust shall be considered an Approved Loan hereunder, and the Lender shall be entitled to receive the benefit of and to enforce the provisions of this Lease or the new lease approved pursuant paragraph (9) of this Section 8.2(a).
(11) Unless the Lenders otherwise consent in writing, Lessor and Lessee each hereby waives, and agrees not to assert or otherwise take the benefit of, that portion of Section 365(d)4, or any other applicable provisions, of the United States Bankruptcy Code (11 U.S.C. Section 101 et seq.), which provides for the deemed rejection of a lease in certain Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
951
25 circumstances, so long as the trustee is paying the rent due under the Lease and performs, or causes the performance of, the uses of the Leased Premises for the Project pursuant to this Lease. (12) Subject to the rights of the Lenders, which shall have priority over all persons or entities given rights under this clause (12), any Investor limited partners (or members, as applicable) of Lessee shall have the same rights as any Lender authorized under paragraphs (2), (3) and (7) of this Section 8.2(a) of this Lease and any reference to a Lender in paragraphs 2), (3) and (7) of this Section 8.2(a) shall be deemed to include such limited partners (or members, as applicable).
(13) Lessor shall cooperate in including in this Lease by suitable amendment from time to time any provision which may reasonably be requested by any Lender or any proposed lender, for the purpose of implementing the mortgagee-protection provisions contained in this Lease and allowing such Lender or proposed lender reasonable means to protect or preserve the lien of the leasehold mortgage and the value of its security, and to include any additional rights and privileges reasonably requested to be added by such Lender. Lessor, subject to City Council approval which may be withheld, agrees to execute and deliver (and to acknowledge, if necessary, for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect Lessor’s Estate or any other interest of Lessor in the Land or the Leased Premises, affect the Lease Term or rent under this Lease, or otherwise in any material respect adversely affect any rights of Lessor under this Lease.
(b) Notwithstanding any contrary provision of this Lease, in no event may any mortgage or other security instrument, including without limitation any Leasehold Mortgage, be recorded against Lessor’s fee interest in the Land or reversionary interest in the Improvements without Lessor’s prior written consent, which Lessor may grant or withhold in the exercise of Lessor’s sole discretion.
(c) Intentionally omitted.
(d) Notwithstanding any contrary provision hereof, if prior to completion of construction of the Improvements, a Lender completes a foreclosure sale or accepts a deed in lieu of foreclosure, such Lender or such Lender’s nominee may complete construction with modifications to the Construction Plans as necessary to make the Project economically feasible and as reasonably approved by the City of Livermore provided that such modifications will not result in a reduction in the number of residential units, a reduction in the number of on-site parking spaces, or a significant reduction in Project common space or amenities.
Section 8.3 Cost of Approved Loans to be Paid by Tenant. Lessee affirms that it shall bear all of the costs and expenses in connection with (a) the preparation and securing of the Approved Loans, (b) the delivery of any instruments and documents and their filing and recording, if required, and (c) all taxes and charges payable in connection with the Approved Loans.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
952
26 Section 8.4 Proceeds of Approved Loans. It is expressly understood and agreed that all Approved Loan proceeds shall be paid to and become the property of Lessee, and that Lessor shall have no right to receive any such Approved Loan proceeds.
Section 8.5 Notice and Right to Cure Defaults Under Approved Loans. Upon the recording of a memorandum of this Lease, Lessor may record in the Official Records of the County of Alameda a request for notice of any default under each Approved Loan. In the event of default by Lessee under an Approved Loan, Lessee or Lessor shall have the right, but not the obligation, to cure the default in accordance with the Loan Documents. Any payments made by Lessor to cure a default shall be treated as Additional Rent due from Lessee hereunder, which shall be paid within thirty (30) days of the date on which the payment was made by Lessor.
Section 8.6 Rights of Investor. The Investor shall have the same notice and cure rights as any Lender for so long as it is a limited partner of Lessee; provided however, the references in this Section 8 to additional cure periods of Lender to permit Lender to foreclose shall instead refer to Investor’s actions to remove the general partner of Lessee.
Section 8.7 Right to Pay Taxes and Senior Mortgage. All Lenders shall have the right (but not the obligation) to pay any taxes payable by Lessor with respect to the Leased Premises, and to cure any monetary or nonmonetary default by Lessor under any mortgage or other encumbrance on the Leased Premises which has priority over this Lease; and, if a Lender does so pay or cure, Lessor agrees that it will reimburse the Lender for the amount thereof promptly following request by the Lender therefor.
ARTICLE 9.
In the event of any conflict between this Article 9 and any other term or provision of this lease Lease this Article 9 shall control.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 9.1 Representations, Warranties and Covenants of Lessor. As an inducement to Lessee to enter into and proceed under this Lease, Lessor warrants and represents to Lessee as follows, which warranties, representations and covenants are true and correct as of the date of this Lease, to the actual knowledge of Lessor:
(a) Lessor has good and marketable, fee simple title to the Leased Premises, subject only to encumbrances of record or disclosed in writing to Lessee (“Permitted Encumbrances”), and has the right, power and authority to enter into this Lease and to lease the Leased Premises to Lessee in accordance with the terms, provisions and conditions contained in this Lease, and no other party has any right or option to or in connection with Lessor’s interest in the Leased Premises; and Lessor shall not encumber the fee interest in the Leased Premises without Lessee’s and Senior Leander’s prior written consent.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
953
27 (b) there is no litigation or action, pending or threatened, affecting the Leased Premises or any streets or other public rights-of-way abutting or serving the Leased Premises; (c) Lessor has received no written notice and has no knowledge, nor has Lessor been otherwise advised, of any pending or threatened Taking relating to all or any part of the Leased Premises;
(d) Lessor has received no written notice and has no actual knowledge of the intention of any party holding an easement affecting the Leased Premises or any part thereof to expand the exercise of any such easement beyond the current scope permitted by the applicable Permitted Encumbrance;
(e) the entry by Lessor into this Lease with Lessee and the performance of all of the terms, provisions and conditions contained herein will not, or with the giving of notice or the passage of time, or both, would not, violate or cause a breach or default under any other agreement relating to the Leased Premises to which Lessor is a party or by which it is bound, including, without limitation, the Permitted Encumbrances; (f) except as disclosed to Lessee or as is apparent from Lessee’s inspection, there is no tenant, lessee or other occupant of the Leased Premises having any right or claim to possession or use of the Leased Premises;
(g) there are no unpaid special assessments of which Lessor has received notice for sewer, sidewalk, water, paving, gas, electrical or utility improvements or other capital expenditures affecting the Leased Premises;
(h) there are no outstanding notices of, nor, to Lessor’s knowledge, any violations of any Legal Requirements affecting any portion of the Leased Premises that materially affect the development of the Improvements;
(i) To Lessor’s actual knowledge, except as disclosed in that certain Phase 1 Environmental Site Assessment dated June 2021, prepared by Geocon Consultants (“Environmental Report”), neither the Leased Premises nor any part thereof has been used for the disposal of refuse or waste, or for the generation, processing, manufacture, storage, handling, treatment, transportation or disposal of any Hazardous Materials, as provided to the Lessee through the DDLA. To Lessor’s actual knowledge, except as disclosed in the Environmental Reports, no Hazardous Materials have been installed, used, stored, handled, or located on or beneath the Leased Premises, which Hazardous Materials, if found on or beneath the Leased Premises, or improperly disposed of away from the Leased Premises, would subject the owner or occupant of the Leased Premises to damages, penalties, liabilities or an obligation to perform any work, cleanup, removal, repair, construction, alteration, demolition, renovation or installation in or in connection with the Leased Premises (“Environmental Cleanup Work”) in order to comply with any Legal Requirements applicable to Hazardous Materials. To Lessor’s actual knowledge, there is no notice from any Governmental Authority or any Person, claiming any violation of any Legal Requirement pertaining to Hazardous Materials or any liability thereunder, or requiring or calling any attention to the need for any Environmental Cleanup Work on or in connection with the Leased Premises, and neither Lessor, its agents or employees has ever been informed of any Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
954
28 threatened or proposed serving of any such notice of violation or corrective work order. To Lessor’s actual knowledge, except as disclosed in the Environmental Reports, no part of the Leased Premises is affected by any “Hazardous Materials Contamination,” which for purposes hereof, shall mean (i) the contamination of any improvement, facilities, soil, subsurface strata, ground water, ambient air, biota or other elements on or of the Leased Premises by Hazardous Materials, or (ii) the contamination of the buildings, facilities, soil, subsurface strata, ground water, ambient air, biota or other elements on, or of, any other property as a result of Hazardous Materials emanating from the Leased Premises.
Section 9.2 Representations, Warranties and Covenants of Lessee.
As an inducement to Lessor to enter into and to proceed under this Lease, Lessee warrants and represents to Lessor as follows, which warranties, representations and covenants are true and correct as of the date of this Lease:
(j) Authority. Lessee has the right, power and authority to enter into this Lease and the right, power and authority to comply with the terms, obligations, provisions and conditions contained in this Lease;
(k) No Breach of Obligations. The entry by Lessee into this Lease and the performance of all of the terms, provisions and conditions contained herein will not, or with the giving of notice or the passage of time, or both, would not, violate or cause a breach or default under any other agreements to which Lessee is a party or by which it is bound.
Section 9.3 Hazardous Materials. Lessee (i) shall not cause or permit any Hazardous Materials to be placed, held, located or disposed of on, under or at the Leased Premises or any part thereof, except in commercially reasonable amounts used in the construction and operation of the Improvements and in accordance with Legal Requirements, and (ii) shall not cause or permit any Hazardous Materials contamination of the Leased Premises or any part thereof.
Section 9.4 Relocation Obligations and Indemnity. Lessee covenants that persons residing on the Leased Premises shall not be displaced before suitable temporary replacement housing is available within the Project or elsewhere. Lessee shall ensure that all occupants of the Leased Premises receive all notices, benefits and assistance to which they are entitled in accordance with California Relocation Assistance Law (Government Code Section 7260 et seq.), all state and local regulations implementing such law, and all other applicable federal, state, or local relocation law, regulation, or policy, including but not limited to the Uniform Relocation Act (42 U.S.C. § 4601 et seq.) and implementing regulations (collectively referred to herein as “Relocation Laws”). Any and all costs incurred in connection with the temporary and/or permanent displacement and/or relocation of occupants of the Leased Premises, including without limitation payments to a relocation consultant, moving expenses, and payments for temporary and permanent relocation benefits pursuant to Relocation Laws shall be paid by Lessee, and Lessor shall have no responsibility for payment therefor. Lessee shall be liable for any and all claims for applicable relocation benefits sought by any current, former or future tenant of the Land or the Improvements existing or to be constructed on the Land pursuant to this Lease.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
955
29 In addition to any other indemnities provided by Lessee in this Lease, to the fullest extent permitted by law, Lessee shall indemnify, protect, defend (with counsel selected by or otherwise acceptable to Lessor), and hold harmless the Indemnitees from and against any and all alleged or actual Claims arising out of or in connection with the breach of Lessee’s obligations set forth in this Section or arising directly or indirectly from the transfer of the Leased Premises to the Lessee, including without limitation Claims for relocation benefits and assistance under any Relocation Laws, all leasehold interests and rights of tenancy or occupancy, any bonus value, lost income (past or future), failure to locate a suitable replacement residential location, lost rental income or sublease or license income, severance damages (if any), pre-condemnation damages (if any), economic or consequential damages, professional consultant fees, attorneys’ fees and costs, expert witness fees and costs, and any and all compensable interests, and/or damages, and/or claims, of any kind and nature, claimed or to be claimed, suffered or to be suffered, by any person or entity that is or claims to be a current or former tenant or sub-tenant or occupant with a right to use or occupy the Leased Premises. The provisions of this Section shall survive the expiration or termination of this Lease. The provisions in Section 6.4(b), (c), and (d) of this Lease apply to this obligation to defend, indemnify, and hold harmless.
Section 9.5 Hazardous Materials Indemnification. In addition to any other indemnities provided in this Lease, to the fullest extent permitted by law, from and after the Commencement Date, Lessee shall indemnify, protect, hold harmless and defend (with counsel selected by or otherwise acceptable to Lessor) the Indemnitees from and against any and all Claims arising directly or indirectly, in whole or in part, out of (i) any activity by Lessee, or its officials, officers, directors, employees, agents (including, without limitation, the Management Agent), contractors, subcontractors, tenants, subtenants, customers, guests, servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, or invitees its affiliates or its agents or contractors or subcontractors carried on or undertaken on or off the Leased Premises in connection with the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials located or present in, on, under or about the Leased Premises; or (ii) the failure of Lessee or its officials, officers, directors, employees, agents (including, without limitation, the Management Agent), contractors, subcontractors, tenants, subtenants, customers, guests, servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, or invitees to comply with any Environmental Laws relating to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation, or disposal of Hazardous Materials into, on, under or from the Leased Premises, except to the extent any such Claim arises from the sole active gross negligence or willful misconduct of the Indemnitees. The provisions of this Section shall survive the expiration or termination of this Lease. The provisions in Section 6.4(b), (c), and (d) of this Lease apply to this obligation to defend, indemnify, and hold harmless.
Notwithstanding any contrary provision hereof, the indemnity provided in this Section
9.5 shall not apply to Claims arising in connection with or resulting from Hazardous Materials present on the Property prior to the Commencement Date including as identified in that certain Environmental Site Assessment dated June 2021, prepared by Geocon Consultants, except to the extent such Claims result from or arise out of or in connection with the acts or omission of Lessee or its officials, officers, directors, employees, agents (including, without limitation, the Management Agent), contractors, subcontractors, tenants, subtenants, customers, guests, Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
956
30 servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, or invitees or its affiliations, employees, officers, directors, volunteer, agents, contractors, or subcontractors or relate to or arise in connection with the demolition of existing improvements on the Leased Premises including without limitation, the release, transportation or disposal of Hazardous Materials in connection with such demolition.
Section 9.6 Prevailing Wage Requirements. If required by applicable federal and state law, Lessee and its officials, officers, directors, employees, agents (including, without limitation, the Management Agent), contractors, subcontractors, tenants, subtenants, customers, guests, servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, and invitees contractors, subcontractors, affiliates, and agents shall comply with the federal Davis Bacon Act and implementing regulations and with California Labor Code Section 1720 et seq. and the regulations adopted pursuant thereto (all of the foregoing, collectively, “Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. To the greatest extent permitted by law, Lessee shall indemnify, defend (with counsel selected or otherwise acceptable by Lessor) and hold the Indemnitees harmless from and against all Claims which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages (including without limitation, all Claims that may be made by contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726 and 1781) or the requirement of competitive bidding in connection with the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Lease, including but not limited to the Prevailing Wage Laws, or any act or omission of Lessee or its officials, officers, directors, employees, agents (including, without limitation, the Management Agent), contractors, subcontractors, tenants, subtenants, customers, guests, servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, and/or invitees related to this Lease with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. The provisions of this Section shall survive the expiration or earlier termination of this Lease. The provisions in Section
6.4(b), (c), and (d) of this Lease apply to this obligation to defend, indemnify, and hold harmless.
Section 9.7 Compliance with Laws. Lessee shall carry out and shall cause its officials, officers, directors, employees, agents, agents (including, without limitation, the Management Agent),contractors, subcontractors, tenants, subtenants, customers, guests, servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, or invitees contractors, subcontractors, agents, and affiliates to carry out the construction of the Project, and shall operate the Project in conformity with all applicable federal, state and local laws, rules, ordinances and regulations (“Applicable Laws”), including without limitation, all applicable federal and state labor laws and standards, Section 3 of the Housing and Community Development Act of 1974, as amended (if applicable), applicable provisions of the California Public Contracts Code (if any), 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. To the fullest extent permitted by law, Lessee shall indemnify, defend Item 5.8
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31 (with counsel selected by or otherwise acceptable to Lessor) and hold harmless the Indemnitees from and against any and all Claims arising in connection with or related to the breach of Lessee’s obligations set forth in this Section whether or not any insurance policies shall have been determined to be applicable to any such Claims. This Section shall survive the expiration or termination of this Lease. The provisions in Section 6.4(b), (c), and (d) of this Lease apply to this obligation to defend, indemnify, and hold harmless.
Section 9.8 Affordability and Use Restrictions. Lessee hereby covenants and agrees that the Leased Premises shall be used solely for the operation of a multifamily rental senior housing development in compliance with the requirements set forth herein. Throughout the Affordability Term, (as defined in Section 1.1(e) Lessee agrees that: (i) not less than 16 of the residential units shall be both Rent Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose gross household income is no greater than twenty percent (20%) of AMI, (ii) not less than 8 of the residential units shall be both Rent Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose gross household income is no greater than thirty percent (30%) of AMI; (iii) 43 of the residential units shall be both Rent Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose gross household income is no greater than fifty percent (50%) of AMI, for a total of 68 of the residential units in the Project restricted to extremely low and very low income households; (iv) 9 of the residential units shall be both Rent Restricted and occupied (or if vacant, available for occupancy) by Eligible Households whose gross household income is no greater than sixty percent (60%) of AMI (“Restricted Unit(s)”); and (v) all units, except for one (1) of the residential units in the Project which shall be a manager’s unit for which rent will not be restricted, will be restricted by the TCAC restrictive covenant to be recorded when the units are placed-in-service by TCAC’s definition (“TCAC Units”). The Restricted Units shall have maximum unit occupancy standards established according to TCAC regulations or in the absence of such regulations shall be two persons per bedroom plus one additional person. A total of 78 units will be allocated to the Local Housing Trust Fund (LHTF). Presumed occupancy for the purposes of determining Restricted Rent shall be based upon TCAC rules, but in absence of those rules, shall be as follows: 1 person occupying a studio unit; 2 persons occupying a one- bedroom Unit; and, 3 persons occupying a two-bedroom unit. The intent of the affordability restrictions in this Section 9.8 is to duplicate the restrictions set forth in the Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants by and between the Lessor and Lessee dated on or about the same date of this Lease (the “City Regulatory Agreement”), as such during the term of the Regulatory Agreement, Lessee’s compliance with the Regulatory Agreement shall be deemed compliance with this Section 9.8 and any conflicts between this Section 9.8, or any other section of this Lease, and the Regulatory Agreement shall be resolved in favor of the Regulatory Agreement.
Number of Targeted
Low-Income Units
Percent of Area
Median Income (AMI)
(20%-50%)
Percentage of Low-
Income Units
(before rounding down)
16 20% 20.51
9 30% 11.54
Item 5.8
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32 43 50% 55.13
10 60% 12.82
Following expiration of the Affordability Term and through the remainder of the Lease Term, at least forty-nine percent (49%) of the residential units in the Project, other than the management units, shall be restricted for Seniors earning up to 60% of Area Median Income.
In the event that recertification of tenant incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each income group as specified in this section, Lessee shall rectify the condition by renting the next available dwelling unit(s) in the Project to Eligible Household(s) until the required income mix is achieved. A dwelling unit shall qualify as “Rent Restricted” if the gross rent charged for such unit does not exceed the Affordable Rent for the applicable household income category as set forth herein.
9.8.1. Project Based Section 8 Units . To the extent allowed under the rules and regulations applicable to such program, Lessee agrees that Project Based Section 8 assistance received for the Project shall be prioritized to those Restricted Units serving the lowest income tenants in the Project. Notwithstanding any contrary provision of this Agreement, for units that are subsidized with Section 8 project-based vouchers, the rules and regulations applicable to such program shall prevail with respect to the s etting of rents, implementation of occupancy requirements, and determination of gross household income.
9.8.2 Tenant Recertification. In the event that recertification of tenant incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each income group as specified in this Section 9.8, Lessee shall rectify the condition by renting the next available dwelling unit(s) in the Project to Eligible Household(s) until the required income mix is achieved. A dwelling unit shall qualify as “Rent Restricted” if the gross rent charged for such uni t does not exceed the Affordable Rent for the applicable household income category as set forth in Section 9.8.
Notwithstanding anything to the contrary contained in this Agreement, if other Project lenders, Project investors, or regulatory agencies restrict a greater number of units than restricted by this Agreement or require stricter household income eligibility or affordability requirements than those imposed hereby, the requirements of such other lenders, investors or regulatory agencies shall prevail, including without limitation, the rent and occupancy requirements imposed in connection with the use of project based vouchers or other rent subsidies.
9.8.3 Disabled Persons Occupancy.
a) Lessee shall cause the Project to be operated at all times in compliance with all applicable federal, state, and local disabled persons accessibility requirements including, but not limited to the applicable provisions of: (i) the Unruh Act, (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of 1973, (iv) the United States Fair Item 5.8
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33 Housing Act, as amended, (v) the Americans With Disabilities Act of 1990, and (vi) Chapters 11A and 11B of Title 24 of the California Code of Regulations, which relate to disabled persons access (collectively, the "Accessibility Requirements"). b) To the fullest extent permitted by law, Lessee shall indemnify, protect, hold harmless and defend (with counsel selected by or otherwise acceptable to Lessor) the Indemnitees from and against Claims arising out of or related to Lessee's, or Lessee’s offici als, officers, directors, employees, agents, (including, without limitation, the Management Agent), contractors, subcontractors, tenants, subtenants, customers, guests, servants, representatives, volunteers, assignees, licensees, affiliates, members, partners, or invitees servants, volunteers, assignees, or licensees failure to comply with the Accessibility Requirements. The provisions in Section 6.4(b), (c), and (d) of this Lease apply to this obligation to defend, indemnify, and hold harmless.
9.8.4 Loss of Subsidy.
It is anticipated that certain Restricted Units in the Project (the "Subsidy Units") will receive Project-Based Section 8 or other rental subsidies (the "Rental Subsidy") throughout the Term, as reflected in the Financing Plan for the Project. If any change in federal law occurs, or any action (or inaction) by Congress or any federal or state agency occurs, which results in a material reduction, termination or nonrenewal of the Rental Subsidy through no fault of the Lessee, such that the Rental Subsidy shown on the Finance Plan for the Project app roved by the Lessor is no longer available, Lessee shall, in anticipation of such loss in Rental Subsidy, use good faith efforts for a period of ninety (90) days, to identify and obtain alternative sources of rental subsidies and shall provide the Lessor progress reports on Lessee's efforts to identify and obtain alternative sources of rental subsidies. If at the end of such ninety (90) day period , Lessee is unable to secure an alternate source of rental subsidy, notwithstanding Section 9.8.2, Lessee may increase the rent on one or more of the Restricted Units that overlap with a Subsidy Unit, up to sixty percent (60%) of AMI (“TCAC Maximum Rent Limit”), subject to the following requirements:
a) Any such rent increase must be pursuant to a transition plan approved by the Lessor showing how the rent increase will be implemented, and which Restricted Units will be subject to the increase, and, if applicable, be consistent with remedial measures set forth in California Code of Regulations Title 4, Division 17, Chapter 1, Section 10 337(a)(3) or successor regulation applicable to California's Federal and State Low Income Housing Tax Credit Program;
b) At the time Lessee requests an increase in the Restricted Unit rent, Lessee shall provide the Lessor with a copy of the proposed Annual Operating Budget showing the impact of the loss or reduction of the Rental Subsidy;
c) Any subsequent rent increases remain subject to Section 9.8.4 above; and, d) The number of Restricted Units subject to the rent increase and the level of rent increase may not be greater than the amount required to ensure that the Project generates Item 5.8
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34 sufficient income to cover its operating costs and debt service as shown on the Annual Operating Budget, and as is necessary to maintain the financial stability of the Development. e) Upon receipt of any alternative rental subsidies, Lessee shall reduce the rents on the Restricted Units back to the Affordable Rents set out in Section 9.8, to the extent that the alternative rental subsidies provide sufficient income to cover the operating costs and debt service of the Project as shown on the Annual Operating Budget.
9.8.5 Rent Increases on Foreclosure.
In the event that a Senior Lender (as defined in the Loan Agreement) foreclosures on the Project (or receives a deed in lieu of foreclosure), the rents may be increased as described in Section 9.8.4 Section 2.1 above.
In no event shall fewer than 49% of all units in the Project be maintained as Restricted Units at or below 60% of Area Median Income. Any such rent increase shall be implemented in phases and be subject to a transition plan approved by the Lessor. The transition plan shall, at a minimum, (1) outline the phased rent increases, (2) identify which Restricted Units are subject to rent increases, and (3) state the operating income and expenses for the Project, which shall include a comparison of the pre-foreclosure rent structure and the proposed rent increases.
In the event that a Senior Lender (as defined in the Loan Agreement) foreclosures on the Project (or receives a deed in lieu of foreclosure), the rents on one or more of the Restricted Units may be increased up to the TCAC Maximum Rent Limit to maintain the financial feasibility of the Project, subject to the following requirements:
a) In no event shall fewer than 49% of all units in the Development be maintained as Restricted Units at or below 60% of Area Median Income. Any such rent increase must be pursuant to a transition plan approved by the Lessor showing: (i) how the rent increase will be phased-in; (ii) which Restricted Units will be subject to the increase; and (iii) the operating income and expenses for the Project comparing the current rent structure to the proposed rent structure;
b) The number of Restricted Units subject to the rent increase and the level of rent increase may not be greater than the amount required to ensure that the Project generates sufficient income to cover its operating costs and debt service, and as is necess ary to maintain the financial stability of the Development; and
c) The rent increase may occur only at the time of renewal of the term of the lease of an existing Tenant or the time of leasing a Restricted Unit to a new tenant. Any subsequent rent increases remain subject to Section 9.8.4 above.
9.8.6 Rents for Restricted Units; Unit Sizes .
For all Restricted Units rents shall be limited to Affordable Rents for households of the applicable income limit and presumed household size in accordance with TCAC Standards. In the event that TCAC no longer publishes the income and rent information that this Lease contemplates that TCAC will publish, respectively, the Lessor shall provide Lessee with other Item 5.8
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35 income and rent determinations which are reasonably similar with respect to methods of calculation to those previously published by TCAC, as applicable. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such tenant's household income increases to exceed the qualifying limit for such Restricted Unit. A household which at initial occupancy qualifies in a particular income category shall be treated as continuing to be of such income category so long as the household’s gross income does not exceed one hundred forty percent (140%) of the applicable income limit. In the event the gross household income of a household that qualified at the applicable income limit at initial occupancy exceeds the applicable income limit for a unit, that unit will continue to be considered as satisfying the applicable income limit if the unit remains Rent-Restricted. In the event a tenant’s household income exceeds the limits specified in this Section, Lessee shall apply the rules applicable to the Project pursuant to Section 42 of the Internal Revenue Code of 1986, as amended and the federal Regulations applicable thereto. In the event of inconsistency between the provisions of this Section and the rules applicable to the Project in connection with low-income housing tax credits, the rules applicable pursuant to such financing source shall prevail.
a) For the purpose of determining whether a household is an Eligible Household, gross household income shall be determined in accordance with TCAC regulations and federal regulations applicable to low-income housing tax credits. b) Subject to Section 9.8.3(a), if, upon recertification of the income of a Tenant of a City-Assisted Unit, Lessee determines that a Tenant of a Restricted Unit has an Adjusted Income exceeding the maximum qualifying income for a 50% AMI Household, such Tenant shall be permitted to continue occupying the Restricted Unit and upon sixty (60) days written notice, the Rent may be increased to one-twelfth (1/12th) of thirty percent (30%) of the actual Adjusted Income of the Tenant, and Lessee shall rent the next available Unit of the appropriate size to a 20% AMI Household, a 30% AMI Household, a 40% AMI Household, or a 50% AMI Household, as applicable, at a Rent not exceeding the maximum Rent specified in Section 2.2, or designate another Unit in the Development with a 20% AMI Household as a 20% Unit, a 30% AMI Household as a 30% Unit, a 40% AMI Household as a 40% Unit, or a 50% AMI Household as a 50% Unit, as applicable, at a Rent not exceeding the maximum Rent specified in Section [2.2(a)].
c) Initial Rents are subject to Lessor approval. Rents may not be increased more often than once every twelve (12) months and by no more than five percent (5%) per year.
Borrower shall provide each Tenant with at least sixty (60) days written notice of any increase in Rent applicable to such Tenant.
Section 9.9 Selection of Tenants.
In order to ensure that there is an adequate supply of affordable housing within the City of Livermore for senior residents within the City, including an application preference for Veteran Seniors, as defined in the Regulatory Agreement, to the extent permitted by law (including but not limited to federal, state and local fair housing laws) and consistent with the program regulations for funding sources used for development of the Project, applications will be selected pursuant to an equitable selection method, and in accordance with City approved Item 5.8
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36 guidelines. Notwithstanding the foregoing, in the event of a conflict between this provision and the provisions of Section 42 of the Internal Revenue Code of 1986, as amended, or HUD Regulations applicable to the Project, the provisions of such Section 42 and HUD Regulations shall control. Lessee shall comply wit h City’s Affirmative Marketing Policies or other rental policies and procedures as they may be amended from time-to-time.
Section 9.10 Reporting Requirements; Access to Information; Inspections. (a) Tenant Certification. Lessee or Lessee’s authorized agent shall obtain from each household prior to initial occupancy of each residential unit in the Project (except the manager’s unit), and on every anniversary thereafter, a written certificate containing all of the following in such format and with such supporting documentation as Lessor may reasonably require: (i) the identity of each household member; and (ii) the total gross household income.
Lessee 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. (b) Annual Report. Following completion of construction of the Project, on each April 1 during the term of this Lease, Lessee shall submit an annual report (“Annual Report”) to the Lessor in form satisfactory to Lessor, together with a certification that the Project is in compliance with the requirements of this Lease. Notwithstanding the Annual Report requirements, Lessee shall submit to the City an initial lease up report containing the tenant certification and occupancy information described in this section. The Annual Report shall, at a minimum, include the following information for each dwelling unit in the Project: (i) unit number and name; (ii) number of bedrooms; (iii) current rent and other charges; (iv) move in date and dates of any vacancies during the previous year; (v) number of people residing in the unit; (vi) total gross household income of residents; (vii) documentation of source of household income; and (viii) the information required by Paragraph (a). Lessee shall include with the Annual Report, an income recertification for each household, documentation verifying tenant eligibility, and such additional information as Lessor may reasonably request from time to time in order to demonstrate compliance with this Lease. The Annual Report shall conform to the format requested by Lessor; provided however, during such time that the Project is subject to a regulatory agreement restricting occupancy and/or rents pursuant to requirements imposed in connection with the use of state or federal low-income housing tax credits, Lessee may satisfy the requirements of this Section that pertain to tenant income certification and rents by providing Lessor with a copy of compliance reports required in connection with such financing.
In addition to the information described above, the Annual Report shall include the following:
(i) A Project income and expense statement for the reporting period;
(ii) Proposed annual budget for the next fiscal year which sets forth Lessee’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 Project as well as the amount in the Project’s reserve accounts and the amount expected to be needed for major repairs or other needs during the new fiscal year; Item 5.8
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37 (iv) Information on the status of the waiting list for units, including the number of households on the list; and
(v) A financial audit of the books and records of the Project prepared in accordance with generally accepted auditing standards by an independent certified public accountant.
(vi) Lessor may, from time to time request additional or different information, and Lessee shall promptly supply such information in the reports required hereunder. (c) Maintenance of Records, Inspections. Lessee shall maintain copies of tenant leases, income certifications and other matters related to the leasing of the residential units in the Project for a period of five (5) years after the final date of occupancy by the tenant. Lessee shall provide Lessor and its authorized agents and representatives access to and copies of any books, documents, papers and records of the Project for the purpose of making audits, examinations, excerpts and transcriptions. With 48-hours’ notice, during normal business hours and as often as may be deemed necessary, Lessor and its authorized agents and representatives shall be permitted access to and the right to examine the Improvements and the Leased Premises and to interview employees of the Project, for the purpose of verifying compliance with applicable regulations and compliance with the conditions of this Lease.
Section 9.11 Non-Discrimination; Compliance with Fair Housing Laws. Lessee shall not restrict the rental, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Leased Premises, 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. Lessee covenants for itself and all persons claiming under or through it, and this Lease 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 Lessee or any person claiming under or through Lessee 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. Lessee shall include such provision in all leases and rental agreements affecting the Leased Premises or part thereof, and shall enforce the same diligently and in good faith.
Section 9.12 Fair Housing. Lessee shall comply with state and federal fair housing laws in the marketing and rental of the units in the Project. Lessee 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.
Section 9.13 Management Entity and Replacement of Management Agent. City shall be notified at least 90 days prior to any changes in the Management Entity and shall have the right to review and approve the qualifications of the management entity proposed by Lessee for the Project and shall have the right to review and approve any agreement prior to execution between Item 5.8
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38 Owner and the management entity, which approval shall not be unreasonably withheld, conditioned or delayed. The contracting of management services to a management entity shall not relieve Lessee of its primary responsibility for proper performance of management duties.
City hereby approves Satellite Affordable Housing Associates Property Management Corporation as the initial management entity for the Project. Any subsequent management entity shall be subject to City review and approval, which shall not be unreasonably withheld, conditioned or delayed. Upon City determination and delivery of written notice to Lessee that Lessee has failed to operate the Project in accordance with this Agreement, subject to any applicable cure period and the approval of the Project lenders and equity investors, City may require Lessee to contract with a qualified management agent selected by City and approved by the Project lender and equity investor, to operate the Project, or to make such other arrangements as City deems necessary to ensure performance of the required functions. An on-site property management representative is required to reside on the property. If the on-site property management representative is not also the assigned property management staff for the Project, then the representative shall still be available to address resident issues and to serve as the point of contact for City business and the public after regular business hours at the Property.
ARTICLE 10.
EMINENT DOMAIN
Section 10.1 Termination of Lease. Lessor and Lessee agree that, in the event of a Taking such that Lessee reasonably determines that the Leased Premises cannot continue to be operated, at reasonable cost, for its then-current use, then, subject to the rights and consent of Lenders, this Lease shall, at Lessee’s sole option, terminate as of the date of the Taking.
Section 10.2 Continuation of Lease and Presumption of Restoration. Lessor and Lessee agree that, in the event of Taking that does not result in the termination of this Lease pursuant to Section 10.1 above, this Lease shall continue in effect as to the remainder of the Leased Premises, and the Net Condemnation Award will be disbursed in accordance with Section 10.4 below to Lessor and Lessee and/or any Lender, if the terms of the applicable Leasehold Mortgage so require, and shall be used so as to make the same as complete, unified and efficient operating unit as nearly as reasonably possible to the condition existing prior to the Taking, subject to any applicable requirements of the Lender.
Section 10.3 Temporary Taking. If there shall be a temporary Taking with respect to all or any part of the Leased Premises or of Lessee’s interest in this Lease, then the Term shall not be reduced and Lessee shall continue to pay in full all Rents, Impositions and other charges required herein, without reduction or abatement thereof at the times herein specified; provided, however, that Lessee shall not be required to perform such obligations that Lessee is prevented from performing by reason of such temporary Taking.
Section 10.4 Apportionment of Award. If there is a Taking, whether whole or partial, Lessor and Lessee shall be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceedings, or as may be otherwise agreed, taking into consideration Lessor’s fee interest in the Land (as encumbered by this Lease) and reversionary interest in the Improvements upon the Item 5.8
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39 expiration of the Term or termination of this Lease. If the Leased Premises are restored as is contemplated in Section 10.2 above, Lessee shall be entitled to recover the costs and expenses reasonably incurred in such restoration out of any Net Condemnation Award payable to Lessee.
Thereafter, if the condemning authority does not make separate awards, the Parties agree that any Net Condemnation Award will be allocated as follows on a proportionate basis reflecting the Parties’ respective interests in the Land and Improvements and the remaining duration of the Term as follows:
(A) Award on Total or Substantial Taking. In the event of a total or substantial taking, the award shall be apportioned as follows, in the following order:
(a) To the Lenders in an amount equal to the amounts owing on the Leasehold Mortgages (provided that the Lender whose loan is secured by the mortgage or deed of trust that has the highest lien priority shall be paid in full first, prior to any portion of the award being distributed to a Lender whose loan is secured by a mortgage or deed of trust with a lower lien priority).
(b) To Lessor that portion of the award equal to the fair market value of the Land and its reversionary interest in the Improvements. (c) To Lessee, that portion of the award equal to the fair market value of the Improvements (subject to Lessor’s reversionary interest), less the amount paid to the Lenders pursuant to (a) above.
(d) Any “bonus value” (i.e., any portion of the award attributable to the fact that the rent payable by Lessee under this Lease is at a below market rate) shall be paid to Lessor; provided however, if the condemning agency is Lessor, any such “bonus value” shall be equally divided between Lessor and Lessee.
(e) The balance, if any, shall be allocated between Lessor and Lessee respectively in that proportion in which (i) the fair market value of the Land bears to (ii) the fair market value of the Improvements, exclusive of Lessor’s reversionary interest. (B) Award on Partial Taking. In the event of a partial taking, then subject to the terms and provisions of the Senior Leasehold Mortgage, after application of the Award for restoration, any remaining portion of such award shall be apportioned as follows, subject to the allocations in Section 10.4 above, in the following order:
(a) To the Lenders in an amount equal to the amounts owing on the Leasehold Mortgages (provided that the Lender whose loan is secured by the mortgage or deed of trust that has the highest lien priority shall be paid in full first, prior to any portion of the award being distributed to a Lender whose loan is secured by a mortgage or deed of trust with a lower lien priority).
(b) To Lessor, that portion of the award attributable to the fair market value of the portion of the Land taken and that portion of the award attributable to the fair market value of its reversionary interest in the Improvements taken.
Item 5.8
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40 (c) To Lessee, that portion of the award equal to the fair market value of the portion of the Improvements taken (subject to Lessor’s reversionary interest), less the amount paid to the Lenders pursuant to (a) above, but only to the extent that the proceeds of the award are not used for restoration of the Improvements. (d) Any “bonus value” (i.e., any portion of the award attributable to the fact that the rent payable by Lessee under this Lease is at a below market rate) shall be paid to Lessor; provided however, if the condemning agency is Lessor, any such “bonus value” shall be equally divided between Lessor and Lessee.
(e) The balance, if any, shall be allocated between Lessor and Lessee respectively in that proportion in which (i) the fair market value of the Land bears to (ii) the fair market value of the Improvements exclusive of the reversionary interest of Lessor.
(f) Any severance damages awarded or payable because only a portion of the Land and Improvements are taken by eminent domain shall be (a) paid to Lessee during the first 49.5 years of this Lease and (b) equally divided between Lessee and Lessor during the next 49.5 years of this Lease (except to the extent needed to replace any Improvements taken by eminent domain with equivalent Improvements on the remainder of the Land).
(C) Award for Temporary Taking. Any award for a temporary taking shall, subject to the rights of any Lender, be awarded and retained by Lessee. (D) Rent Abatement for Partial Taking. In the event of any partial taking of the Improvements, commencing upon the date of the final order of condemnation, Rent payable under this Lease shall be reduced by the percentage equal to the square footage of the condemned portion of the Improvements divided by the total square footage of the Improvements prior to the taking.
Section 10.5 Joinder. If a Leasehold Mortgage exists, the Lenders, to the extent permitted by law, shall be made a party to any Taking proceeding.
Section 10.6 City Reservation of Rights. Notwithstanding any provisions in this Lease to the contrary, nothing herein does or shall be construed to limit or require the City to exercise its ability to condemn any property, including the Leased Premises, in accordance with applicable law. Nothing in this Lease does or shall be construed as requiring the City to pay to Lessee, any Lender, or any other third party with an interest in the Leased Premises, any amount of money, as compensation for alleged condemnation or otherwise, if City (or its successor) seeks to enforce any of the rights and obligations under this Lease and any executed attachments thereto. Except when City exercises its ability to condemn the Leased Premises by adoption of a resolution of necessity and pursuant to other provisions of applicable law, City shall not be a construed as pursuing or effectuating a Taking or acting as a “condemning authority” under this Lease.
Item 5.8
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41 ARTICLE 11.
DAMAGE OR DESTRUCTION
Section 11.1 Damage or Destruction to Leased Premises. Lessee shall give prompt written notice to Lessor after the occurrence of any fire, earthquake, act of God or other casualty to or in connection with the Leased Premises, the Improvements or any portion thereof (hereinafter sometimes referred to as “Casualty”). Subject to Section 11.2 below and the rights of the Lenders under their Loan Documents, if during the Term the Improvements shall be damaged or destroyed by Casualty, Lessee shall repair or restore the Improvements, so long as Lessee determines, in its sole discretion, that it is feasible to do so and in such event Lessee provides or causes to be provided sufficient additional funds which, when added to such insurance proceeds, will fully effect such repair or restoration. Upon the occurrence of any such Casualty, Lessee, promptly and with all due diligence, shall apply for and collect all applicable insurance proceeds recoverable with respect to such Casualty, for the benefit of the Lenders (which insurance proceeds shall be immediately turned over to the Senior Lender to be held and disbursed in accordance with the terms and provisions of the Senior Leasehold Mortgage). In the event that Lessee shall determine, with Investor’s prior written consent during the Compliance Period (as defined in Section 42 of the Code), subject to the rights of the Lenders, by notice to Lessor given within thirty (30) days after receipt by Lessee of any such insurance proceeds, that it is not economically practical to restore the Improvements and/or the Leased Premises to substantially the same condition in which they existed prior to the occurrence of such Casualty, then, subject to the written approval of Lenders, Lessee may terminate this Lease as of a date that is not fewer than thirty (30) days after the date of such notice. If Lessee terminates this Lease pursuant to this Section 11.1, Lessee shall surrender possession of the Leased Premises to Lessor immediately and assign to Lessor (or, if same has already been received by Lessee, pay to Lessor) all of its right, title and interest in and to the proceeds from Lessee’s insurance upon the Leased Premises, subject to the prior rights of any Lender therein, as referenced in Section 11.3 below.
Section 11.2 Damage or Destruction Near End of Term. If, during the last seven (7) years of the Term, the Improvements shall be damaged by Casualty, then Lessee shall have the option, to be exercised within one hundred twenty (120) days after such Casualty:
(a) to repair or restore the Improvements as hereinabove provided in this Article 11; or
(b) subject to the rights and approval of Lenders, to terminate this Lease by notice to Lessor, which termination shall be deemed to be effective as of the date of the option to terminate the Lease is exercised by Lessee giving written notice of such termination to Lessor. If Lessee terminates this Lease pursuant to this Section 11.2, Lessee shall surrender possession of the Leased Premises to Lessor immediately and assign to Lessor (or, if same has already been received by Lessee, pay to Lessor) all of its right, title and interest in and to the proceeds from Lessee’s insurance upon the Leased Premises, subject to the prior rights of any Lender therein, as referenced in Section 11.3 below.
Section 11.3 Distribution of Insurance Proceeds. In the event that this Lease is terminated pursuant to Sections 11.1 or 11.2 hereof, the insurance proceeds received as the result Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
968
42 of such Casualty shall be distributed as follows: (a) first, if Leasehold Mortgage(s) are in place, to the Lenders to the extent of any indebtedness then owed to such Lender in order of the Lien priority of the Leasehold Mortgages; (b) second, the balance, if any, of such insurance proceeds shall be paid to Lessee or, as applicable pursuant to Sections 11.1 and 11.2 above, assigned or paid over to Lessor.
Section 11.4 Insurance Requirements. Nothing in this Article 11 does permit or shall be construed as permitting Lessee to maintain less than the minimum insurance requirements set forth in this Lease.
ARTICLE 12.
EVENTS OF DEFAULT
Section 12.1 Events of Default. Each of the following shall be an “Event of Default” by Lessee hereunder:
(a) failure by Lessee to pay any Rent or Additional Rent when due if such failure shall continue for a period of thirty (30) days after notice thereof has been given by Lessor to Lessee;
(b) Lessee’s default in the performance of any term, provision or covenant under this Lease, and unless such provision specifies an alternate 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 Lessor shall have given written notice of the default to Lessee, or if the nature of any such non-monetary default is such that it cannot be cured within sixty (60) days, Lessee’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, but in no event longer than one hundred twenty (120) days from receipt of the notice of default;
(c) Lessee’s failure to maintain insurance on the Leased Premises and/or the Improvements as required hereunder, and the failure of Lessee to cure such default within five (5) days or written notice from Lessee;
(d) Subject to Lessee’s right to contest the following charges, Lessee’s failure to pay taxes or assessments due on the Leased Premises or the Improvements or failure to pay any other charge that may result in a lien on the Leased Premises or the Improvements, and Lessee’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; (e) A Transfer (other than a Permitted Transfer) occurs, either voluntarily or involuntarily, in violation of this Lease;
(f) the subjection of any right or interest of Lessee in this Lease to attachment, execution, or other levy, or to seizure under legal process, if not released within ninety (90) days after imposed;
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
969
43 (g) Lessee shall have voluntarily suspended its business for a period in excess of thirty (30) days for reasons other than Force Majeure, or Lessee shall have been dissolved or terminated;
(h) Intentionally omitted.
(i) the appointment of a receiver, to take possession of Lessee’s Estate or of Lessee’s operations on the Leased Premises for any reason (not including receivership pursuant to a Leasehold Mortgage), if such receivership is not terminated dismissed or vacated within ninety (90) days after the appointment of the receiver; (j) 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”), Lessee or any general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Lessee or any general partner thereof in an involuntary case; [Intentionally Omitted](iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Lessee or any general partner thereof or for the Leased Premises; (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; provided however, with respect to Lessee’s general partner, the foregoing actions shall not constitute an Event of Default if the Investor promptly takes action to replace the general partner; (k) the filing against Lessee of any involuntary proceedings under such Bankruptcy Code or similar law (other than by a Lender), if such proceedings have not been vacated or stayed within ninety (90) days of filing;
(l) the appointment of a trustee or receiver for Lessee or for all or the major part of Lessee’s property or the Leased Premises, in any involuntary proceeding, or the taking of jurisdiction by any court over all or the major part of Lessee’s property or the Leased Premises in any involuntary proceeding for the reorganization, dissolution, liquidation or winding up of Lessee (in each case other than at the request of or direction of any Lender), if such trustee or receiver shall not be discharged or such jurisdiction relinquished or vacated or stayed on appeal or otherwise stayed within ninety (90) days of the appointment or the taking of jurisdiction;
(m) any of Lessee’s representations or warranties contained in this Lease or in any financial statement, certificate or report submitted to Lessor in connection with this Lease proves to have been incorrect in any material and adverse respect when made and continues to be materially adverse to Lessor beyond the expiration of the applicable cure period specified in paragraph (b) above.
Section 12.2 Rights and Remedies.
(a) At any time after the occurrence of an Event of Default hereunder, subject in all respects to the provisions of this Lease with respect to Lessor’s rights to cure defaults by Lessee and with respect to the rights of any Lenders, Lessor may, in addition to any other rights and remedies available at law or in equity, terminate this Lease by giving Lessee written notice thereof (with a copy of such notice to the Lenders), setting forth in such notice an effective date Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
970
44 for termination which is not less than thirty (30) days after the date of such notice, in which event this Lease and Lessee’s Estate created hereby and all interest of Lessee and all parties claiming by, through or under Lessee shall automatically terminate upon the effective date for termination as set forth in such notice, with the same force and effect and to the same extent as if the effective date of such notice had been the date originally fixed in Article 2 hereof for the expiration of the Term. In such event, Lessor, its agents or representatives, and the Indemnitees shall have the right, without further demand or notice, to re-enter and take possession of the Leased Premises (including all buildings and other Improvements comprising any part thereof) at any time from and after the effective termination date without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of Rent or existing breaches of covenants. The Lessor has the remedy described in California Civil Code Section 1951.4 (Lessor may continue lease in effect after Lessee’s breach and abandonment and recover rent as it becomes due, if Lessee has right to sublet or assign, subject only to reasonable limitations). (b) Upon the exercise of Lessor’s remedies pursuant to this Section 12.2, Lessee shall execute such releases, deeds and other instruments in recordable form as Lessor shall reasonably request in order to accurately set forth of record the then current status of Lessee’s Estate, Lessee’s rights hereunder, and of any Tenant Leases. (c) If Lessee shall have failed to cure a default by Lessee after expiration of the applicable time for cure of a particular default, Lessor, at its election, but without obligation therefor, and subject to the rights of Lenders, (i) may seek specific performance of any obligation of Lessee, after which Lessor shall retain, and may exercise and enforce, any and all rights that Lessor may have against Lessee as a result of such default, (ii) from time to time without releasing Lessee in whole or in part from the obligations to be performed by Lessee hereunder, may cure the default at Lessee’s cost, (iii) may terminate this Lease pursuant to subsection (a), (iv) subject to the rights of Lenders, may have a receiver appointed to take possession of Lessee’s interest in the Leasehold Estate with power in the receiver (a) to administer Lessee’s interest in the Leasehold Estate, (b) to collect all funds available in connection with the operation of the Project, and (c) to perform all other acts consistent with Lessee’s obligations under this Lease, as the court deems proper. and/or (v) may exercise any other remedy given hereunder or now or hereafter existing at law or in equity. Any reasonable cost incurred by Lessor in order to cure such a default by Lessee shall be due immediately from Lessee, together with interest, and may be offset against any amounts due from Lessor to Lessee. (d) Remedies Cumulative. No remedy provided in this Section shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute, and every power and remedy given by this Lease may be exercised from time to time and as often as occasion may arise or as may be deemed expedient, subject to any limitations referred to hereinabove.
(e) No Election of Remedies. The rights given in this Section to receive, collect or sue for any rent or rents, moneys or payments, or to enforce the terms, provisions and conditions of this Lease, or to prevent the breach or nonobservance thereof, or the exercise of any such right or of any other right or remedy hereunder or otherwise granted or arising, shall not in any way affect or impair or toll the right or power of Lessor upon the conditions and subject to Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
971
45 the provisions in this Lease to terminate Lessee’s right of possession because of any default in or breach of any of the covenants, provisions or conditions of this Lease beyond the applicable cure period.
(f) Survival of Obligations. Nothing herein shall be deemed to affect the right of Lessor to indemnification for liability arising prior to the termination of the Lease for personal injuries or property damage or in connection with any other Claim, nor shall anything herein be deemed to affect the right of Lessor to equitable relief where such relief is appropriate.
No expiration or termination of this Lease by operation of law or otherwise, and no repossession of the Leased Premises or any part thereof, shall relieve Lessee of any of its obligations to indemnify and defend the Indemnitees pursuant to the provisions of this Lease, and all such provisions, and all of Lessee’s accrued liabilities and obligations hereunder, shall survive such expiration, termination or repossession.
(g) No Waiver. Failure to insist upon the strict performance of any term or conditions in this Agreement, no matter how long the failure continues, is not a waiver of the term or condition and does not bar the right to subsequently demand strict performance. To be effective, a waiver must be in writing and signed by the non-breaching party.
Section 12.3 Default by Lessor.
(a) Events of Default. Lessor shall be in default of this Lease if it fails to perform any provision of this Lease that is obligated to perform within sixty (60) days after written notice of the default has been given to Lessor by Lessee. If the default cannot reasonably be cured within sixty (60) days, Lessor shall not be in default of this Lease if Lessor commences to cure the default within such 60-day period and diligently and in good faith continues to cure the default until completion.
(b) Right to Cure; Lessee’s Remedies. If Lessor shall have failed to cure a default by Lessor after expiration of the applicable time for cure of a particular default, Lessee, at its election, but without obligation therefor (i) may seek specific performance of any obligation of Lessor, after which Lessee shall retain, and may exercise and enforce, any and all rights that Lessee may have against Lessor as a result of such default, and/or (ii) from time to time without releasing Lessor in whole or in part from the obligation to be performed by Lessor hereunder, may cure the default at Lessor’s cost provided that Lessor has been given sixty (60) days advance written notice of Lessee’s election to do so and Lessor has not within such time notified Lessee that Lessor will cure the default.
Section 12.4 Notices. Notices given by Lessor under Section 12.1 or by Lessee under Section 12.4 shall specify the alleged default and the applicable Lease provisions, and shall demand that Lessee or Lessor, as applicable, perform the appropriate provisions of this Lease within the applicable period of time for cure. No such notice shall be deemed a forfeiture or termination of this Lease unless expressly set forth in such notice. A notice by Lessor shall not be deemed ineffective if Lessor fails to provide the required time period to cure, so long as, any additional notice period required by this Lease, in addition to that already provided by Lessor, is thereafter provided by Lessor in writing.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
972
46 ARTICLE 13.
QUIET ENJOYMENT AND POSSESSION; INSPECTIONS
Section 13.1 Quiet Enjoyment. Lessor covenants and warrants that Lessee, upon payment of all sums herein provided and upon performance and observance of all its covenants herein contained, shall peaceably and quietly have, hold, occupy, use and enjoy, and shall have the full, exclusive and unrestricted use and enjoyment of, all of the Leased Premises during the Term, subject only to the provisions of this Lease and all applicable Legal Requirements.
Section 13.2 Lessor’s Right of Inspection. Notwithstanding Section 13.1 above, Lessor, in person or through its agents, upon reasonable prior notice to Lessee, shall have the right, subject to the rights of Tenants, to enter upon the Leased Premises for purpose of reasonable inspections performed during reasonable business hours in order to assure compliance by Lessee with its obligations under this Lease or a Tenant Leases.
ARTICLE 14.
VACATION OF LEASED PREMISES
Section 14.1 Vacation Upon Termination. Lessee covenants that upon any termination of this Lease, whether by lapse of time or because of any of the conditions or provisions contained herein, Lessee will peaceably and quietly yield and surrender possession of the Leased Premises to Lessor. The foregoing, however, will be subject to the rights of Tenants or others in possession pursuant to Tenant Leases with Lessee, provided that such Tenants are not in default thereunder and attorn to Lessor as their lessor. An action of forcible detainer shall lie if Lessee holds over after a demand for possession is made by Lessor.
Section 14.2 Surrender. Lessee agrees that on expiration or termination of the Term, Lessee shall surrender the Leased Premises, the Improvements, and any fixtures on the Leased Premises to Lessor, in good order, condition, and repair, reasonable wear and tear and obsolescence. The Improvements and any fixtures on the Leased Premises shall become the property of Lessor, free from any liens or Claims whatsoever, without any further compensation therefor from Lessor to Lessee or any other person. Contemporaneous with the expiration or termination of the Term, Lessee shall immediately deliver to the Lessor the following: (i) such documents, instruments, and conveyances as Lessor may request to enable Lessor’s ownership of the Improvements and fixtures on the Leased Premises to be reflected of record, including, without limitation, a quitclaim deed in recordable form; (ii) all construction plans, surveys, permits, and other documents relating to the Improvements and fixtures on the Leased Premises as may be in the possession of Lessee at the time; and (iii) copies of Tenant Leases for current and prior Tenants and any estoppels as reasonably requested by Lessor. All documents and instruments required to be delivered by Lessee to Lessor pursuant to this Section shall be in a form and contain content reasonably satisfactory to Lessor. Notwithstanding the above, Lessor may, in its sole discretion, reject ownership of the Improvements and fixtures and request either their removal from the Leased Premises or their transfer to another entity.
ARTICLE 15.
NON-MERGER
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
973
47 Section 15.1 Non-Merger. Except upon expiration of the Term or upon termination of this Lease, there shall be no merger of either this Lease or Lessee’s Estate created hereunder with Lessor’s fee interest in the Land or Lessee’s fee interest in the Improvements by reason of the fact that the same person may acquire, own or hold, directly or indirectly, (a) this Lease, Lessee’s Estate created hereunder or any interest in this Lease or the Improvements, and (b) a fee interest in the Land or the Improvements, unless and until the Lessor, all Lenders with an Approved Loan and all persons, including any assignee of Lessor, having an interest in (i) this Lease or Lessee’s Estate created hereunder, and (ii) the fee estate in the Leased Premises or any part thereof, shall join in a written instrument effecting such merger and shall duly record the same.
ARTICLE 16.
TRANSFERS
Section 16.1 Permitted Transfer by Lessee. Except as provided in this Article 16, Lessee shall have no right to Transfer, assign or sublease any legal or beneficial interest in Lessee’s Estate hereunder without Lessor’s prior written consent. In determining whether to consent to a proposed transfer, assignment, or sublease, the Lessor will consider whether the proposed transferee shall submit for Lessor review and approval all instruments and other legal documents proposed to affect any Transfer of all or any part of or interest in the Property, the Improvements or this Agreement together with such documentation of the proposed transferee’s qualifications and solvency, or any other documents, as the Lessor may reasonably request. The Lessor will consider:
(a) If the proposed transferee demonstrates to the Lessor’s satisfaction that it has the qualifications, experience and financial resources necessary and adequate as may be reasonably determined by the Lessor to competently complete and manage the Project and to otherwise fulfill the obligations undertaken by the Lessee under this Agreement in determining whether to consent to a proposed transfer, assignment or sublease under this Lease. (b) Notwithstanding the foregoing, by its execution of this Lease, Lessor is deemed to have consented to the following (“Permitted Transfers”) and the requirements of Section 16.1(a) shall not apply:
(1) Permitted Encumbrances, Approved Loans and Leasehold Mortgages;
(2) a conveyance of the leasehold interest in the Lessee’s Estate resulting from the foreclosure of a Leasehold Mortgage (or an assignment, new lease or deed-in- lieu of such a foreclosure) and the transfer by such person to a third party subject to the provisions of paragraph (8) of Section 8.2(a);
(3) any transfer of equity in the Lessee that does not change management or operational control of Lessee or the Project other than to permit the admittance of an affiliate of Satellite Affordable Housing Associates Housing Corporation, a California nonprofit public benefit corporation, as the managing general partner of Lessee; Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
974
48 (4) the lease of the residential units consistent with the Tax Credit Restrictive Covenant and the Regulatory Agreement;
(5) the transfer of limited partnership interests in Lessee; (6) in the event that any general partner of Lessee is removed by the Investor for cause following default under Lessee’s partnership agreement, the transfer of the general partner interest to Investor or an affiliate of the Investor or to a 501(c)(3) tax-exempt nonprofit corporation selected by the Investor and approved by Lessor, in its reasonable discretion, provided that the successor nonprofit corporation has experience, assets and access to capital and private funding sufficient to construct (if the Project has not been fully constructed) and operate the Project in accordance with this Lease; and (7) the transfer of the Project from Lessee to one of the members of the general partner of the Lessee or an affiliate of the general partners of the Lessee at the end of the tax credit compliance period for the Project.
(c) Upon the granting of any consent (deemed or otherwise) by Lessor with respect to a Transfer by Lessee, this Lease shall be binding upon and shall inure to the benefit of Lessor and Lessee and their respective heirs, successors, assigns, legal representatives, Lenders, Tenants and other transferees.
ARTICLE 17.
MISCELLANEOUS PROVISIONS
Section 17.1 Consents. Lessor agrees not to unreasonably withhold or delay its consent to matters requiring Lessor’s consent hereunder unless the applicable provision of this Lease permits Lessor to exercise Lessor’s sole discretion with respect to a particular matter.
Section 17.2 Enforced Delay; Extension of Times of Performance. Time is of the essence in the performance of each of the Parties’ respective obligations set forth in this Lease.
Except as expressly set forth in this Section 17.2, performance by any Party hereunder shall not be deemed to be in default and such Party shall be entitled to an extension of time to perform its obligations hereunder where delays in performance are due to causes beyond the reasonable control and without the fault of such Party, including as applicable: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority aside from that of Lessor; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplies that are not caused by any Party; acts or the failure to act of any public or governmental agency or entity, aside from the Lessor, that are not caused by Lessee; or other causes beyond the reasonable control of the Party (“Force Majeure”). Notwithstanding the foregoing, Lessee’s inability to secure satisfactory financing, interest rates, and market and economic conditions shall not entitle Lessee to an extension of time to perform. An extension of time for any cause permitted under this Section
17.2 shall be limited to the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
975
49 is sent to the other Party within thirty (30) days of knowledge of the commencement of the cause. If no written notice is sent within thirty (30) days, for purposes of measuring the extension period for performance of the obligation in question, the period of the enforced delay shall commence to run from the date written notice is sent to the other Party. Times of performance under this Lease may be extended by mutual written agreement of the Parties but in no event shall a period of enforced delay extend the Term of the Lease past its expiration, which is set forth in Section 2.2 of this Agreement. .
Section 17.3 Interpretation. The terms of this Lease shall be construed in accordance with the meaning of the language used and shall not be construed for or against any Party by reason of the authorship of this Lease or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Lease.
Section 17.4 Entire Agreement: Modifications. This Lease supersedes all prior discussions and agreements between the Parties with respect to the leasing of the Leased Premises. This Lease shall not be modified or amended in any respect, except by written instrument specifically referencing such modification or amendment which is executed by or on behalf of the Parties in the same manner as this Lease is executed and, to which each Lender has consented in writing (if required by the applicable Loan Documents). The Parties acknowledge and agree that pursuant to Section 2.3 of the DDLA, the DDLA is terminated with respect to the Leased Premises and Phase 1 as of the Commencement Date. The Parties agree that any deletion of language from this Lease before its mutual execution by Lessor and Lessee shall not be construed to have any particular meaning or to raise any presumption canon of construction, or implication, including, without limitation, any implication that the parties intended to state the converse, obverse, or opposite of the deleted language.
Section 17.5 Governing Law. This Lease, and the rights and obligations of the Parties hereunder, shall be governed by and construed in accordance with the substantive laws of the State of California without regard to conflict of law principles. Venue for any dispute hereunder shall be in Alameda County, California.
Section 17.6 Binding Effect. This Lease shall inure to the benefit of and be binding upon the Parties hereto, their successors, administrators, executors and permitted assigns.
Section 17.7 Severability. In the event any provision or portion of this Lease is held by any court of competent jurisdiction to be invalid or unenforceable, such holdings shall not affect the remainder hereof, and the remaining provisions shall continue in full force and effect to the same extent as would have been the case had such invalid or unenforceable provision or portion never been a part hereof, except to the extent the rights and obligations of the parties have been materially altered by such unenforceability.
Section 17.8 Further Assurances. From and after the date of this Lease, Lessor and Lessee, at the request of the other Party, shall make, execute and deliver or obtain and deliver all such affidavits, deeds, certificates, resolutions and other instruments and documents, and shall do or cause to be done all such other things that either Party may reasonably require in order to effectuate the provisions and the intention of this Lease.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
976
50 Section 17.9 Authority to Execute Agreement . The persons executing this Lease on behalf of each Party represents and warrants to the other Party that by proper action such persons have been duly authorized to execute and deliver this Lease.
Section 17.10 Lease Administration and Approvals . The City Manager of the City of Livermore, or his or her designee shall be the person designated by Lessor to administer this Lease on behalf of Lessor. The City Manager of the City of Livermore shall have the authority to consent to any matter requiring Lessor approval or consent as provided in this Lease, and to perform and carry out any activities concerning this Lease, including but not limited to, the execution of any additional agreements, addenda or amendments so long as such actions do not substantially affect the rights and obligations of Lessor as specified herein.
Section 17.11 Captions. All captions, headings, paragraphs, subparagraphs, letters and other reference captions are solely for the purpose of facilitating convenient reference to this Lease, shall not supplement, limit or otherwise vary the text of this Lease in any respect, and shall be wholly disregarded when interpreting the meaning of any terms or provisions hereof.
All references to particular articles, sections, subsections, paragraphs and subparagraphs by number refer to the text of such items as so numbered in this Lease.
Section 17.12 Gender. Words of any gender used in this Lease shall be held and construed to include any other gender, and words of a singular number shall be held to include the plural, and vice-versa, unless the context requires otherwise.
Section 17.13 Exhibits. Each and every exhibit referred to or otherwise mentioned in this Lease is attached to this Lease and is and shall be construed to be made a part of this Lease by such reference or other mention at each point at which such reference or other mention occurs, in the same manner and with the same effect as if each exhibit were set forth in full at length every time it is referred to and otherwise mentioned.
Section 17.14 References. All references to paragraphs or subparagraphs shall be deemed to refer to the appropriate paragraph or subparagraph of this Lease. Unless otherwise specified in this Lease, the terms “herein,” “hereof,” “hereinafter,” “hereunder” and other terms of like similar import, shall be deemed to refer to this Lease as a whole, and not to any particular paragraph or subparagraph hereof.
Section 17.15 Cumulative. Except as expressly limited by the terms of this Lease, all rights, powers and privileges conferred hereunder shall be cumulative and not restrictive of those provided at law or in equity.
Section 17.16 Notices. All notices, requests, demands, or other communications required or permitted to be given hereunder shall be in writing and shall be addressed and delivered by certified mail, return receipt requested; by reputable commercial delivery service; or by hand delivery by a reputable courier, to each Party at the addresses set forth below. Any such notice, request, demand or other communication shall be considered given or delivered, as the case may be, on the date shown on the delivery receipt as the date of delivery, the date delivery was refused or the date the item was returned as undeliverable. By giving prior written notice thereof, any Party, from time to time, may change its address for notices under this Lease.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
977
51 To Lessor: City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
Attention: City Manager
To Lessee: Pac Avenue, L.P.
1835 Alcatraz Avenue
Berkeley, CA 94703
Attention: Eve Stewart, Senior Vice President of Real Estate Development
AND Interfaith Housing, Inc.
550 Hillcrest Avenue
Livermore, CA 94550
Attention: Laning Thompson, Board President
To Investor: NEF Assignment Corporation
10 South Riverside Plaza
Suite 1700
Chicago, Illinois 60606
Attention: General Counsel
Email: [email protected] with subject line of SMT #83146; 83452
With a copy to:
NEF Assignment Corporation
10 South Riverside Plaza
Suite 1700
Chicago, Illinois 60606
Attention: SVP Asset Management
And:
Bocarsly Emden Cowan Esmail & Arndt LLP
633 W. Fifth Street, Suite 5880
Los Angeles, California 90017
Attention: Rachel Rosner, Esq.
Section 17.17 Counterparts. This Lease may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same agreement.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
978
52 Section 17.18 Time of Essence. Time is and shall be of the essence in this Lease.
Section 17.19 Attorneys’ Fees. In any litigation or other action brought by a Party to this Lease to enforce this Lease or regarding a dispute over terms of the Lease or the performance of a Party, the prevailing Party in such litigation or action shall be entitled to attorneys’ fees and the costs of such litigation.
Section 17.20 No Third-Party Beneficiaries. Except as expressly set forth herein, nothing contained in this Lease 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.
Section 17.21 Parties Not Co-Venturers; Independent Contractor; No Agency Relationship. Nothing in this Lease is intended to or shall establish the Parties as partners, co- venturers, or principal and agent with one another. The relationship of Lessee and Lessor is and shall remain solely that of a tenant and landlord, and shall not be construed as a joint venture, equity venture, partnership or any other relationship. Lessor neither undertakes nor assumes any responsibility or duty to Lessee (except as expressly provided in this Lease) or to any third party with respect to the Project.
Section 17.22 Holding Over. If Lessee holds over at the Leased Premises after the expiration of the Term with the consent of the Lessor, either express or implied, such holding over shall be construed to create only a tenancy from month-to-month subject to all the other terms in the Lease.
Section 17.23 End of Term Transfer of Improvements and Leasehold Estate. At the end of the Term, City may assume rights to the Leasehold Estate, including any Improvements or fixtures on the Leased Premises, or transfer the Leasehold Estate, Improvements and fixtures to another non-profit entity. Lessee shall provide the Improvements in as-is but generally the same condition minus ordinary wear and tear and shall provide estoppels and copies of leases with respect to the subtenants, including Tenant Leases.
SIGNATURES ON FOLLOWING PAGE
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
979
53 135.054/633016
IN WITNESS WHEREOF, this Lease is made and entered into in multiple original counterparts on the day and year first above written.
LESSOR:
City of Livermore, a California municipal corporation
By:
Marianna A. Burch, City Manager
APPROVED AS TO FORM:
By: ___________________________________
Jason Alcala
City Attorney
APPROVED AS TO INSURANCE:
By: __________________________________
Risk Manager/Analyst
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
980
54 LESSEE:
Pac Avenue, L.P.,
a California limited partnership
By: Pac Avenue LLC,
a California limited liability company,
its general partner
By: Satellite Affordable Housing Associates,
a California nonprofit public benefit
corporation, a member and the manager
By: ____________________________
Eve Stewart,
Senior Vice President of Real Estate
Development
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
981
EXHIBIT A
Legal Description of Leased Premises
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
982
EXHI
BIT A
LEGAL D
ESCRIPTION OF THE PROPERTY
ALL THA
T REAL PROPERTY IN THE CITY OF LIVERMORE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PAR
CEL 2, OF PARCEL MAP 10858, FILED NOVEMBER 27, 2024, IN BOOK 360 OF PARCEL MAPS, AT PAGES 87, 88, and 89.
APN:
a portion of 099-0950-008-02
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
983
EXHIBIT B
Site Plan of Leased Premises
(Attached)
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
984
EXHIBIT B
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
985
EXHIBIT C
Form of Memorandum of Lease
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
986
Exhibit C
Recording Requested by
and when Recorded, return to:
City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
Attention: City Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.
APN 099-095000802 (portion only - parcel 2)
MEMORANDUM OF GROUND LEASE
(Pacific Avenue Senior Apartments – Phase 1)
THIS MEMORANDUM OF GROUND LEASE (the “Memorandum”) is entered into as of __________________, 2025, by and between the City of Livermore, a California municipal corporation (the “Lessor”) and Pac Avenue, L.P., a California limited partnership (the “Lessee”), with respect to that certain Ground Lease dated _____________, 2025 (the “Lease”), between the Lessor and the Lessee. All capitalized terms used in this Memorandum and not defined shall have the meaning set forth in the Lease.
1. Documentary Transfer Tax is not shown pursuant to Revenue and Taxation Code Section 11932. See that certain Statement of Documentary Transfer Tax Due, which shall be affixed to this Memorandum in the Official Records of Alameda County after record of this Memorandum is made and before the original is returned as specified in Government Code Section 27321.
2. Pursuant to the Lease, Lessor leases to Lessee and Lessee leases from Lessor that certain real property, more particularly described in Exhibit A, attached hereto and incorporated herein (the “Property”). The Lease shall commence on _______________, 2025, and shall remain in effect for the ninety-nine (99) year term of the Lease, unless sooner terminated pursuant to the terms and conditions of the Lease.
As more particularly set forth in the Lease, certain development, affordability and occupancy restrictions apply to the use of the Property.
1. This Memorandum shall incorporate herein all of the terms and provisions of the Lease as though fully set forth herein.
2. This Memorandum is solely for recording purposes and shall not be construed to alter, modify, amend or supplement the Lease, of which this is a memorandum. In the event of any inconsistency between the terms and conditions of this Memorandum and the terms and conditions of the Lease, the terms and conditions of the Lease shall control.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
987
3. This Memorandum may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts so executed shall together constitute but one and the same instrument.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
988
IN WITNESS WHEREOF, the parties have caused this Memorandum to be duly executed as of the date first above written.
LESSOR:
City of Livermore, a California municipal corporation
By: ______________________________________
Marianna A. Burch, City Manager
ATTEST:
By:
APPROVED AS TO FORM:
City Attorney
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
989
LESSEE:
Pac Avenue, L.P.,
a California limited partnership
By: Pac Avenue LLC,
a California limited liability company,
its general partner
By: Satellite Affordable Housing Associates,
a California nonprofit public benefit
corporation, a member and the manager
By: ____________________________
Eve Stewart,
Senior Vice President of Real Estate
Development
[SIGNATURES MUST BE NOTARIZED]
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
990
ACKNOWLEDGMENT
State of California )
) ss
County of ___________ )
On ,
before me, _____________________________________,
(Name 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 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)
SIGNATURES MUST BE NOTARIZED.
ACKNOWLEDGMENT
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.
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.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
991
State of California
)
) ss
County of ___________ )
On
, before me, _____________________________________,
(Name of Notary)
notary public, personally appeared ______________________________________ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Notary Signature)
SIGNATURES MUST BE NOTARIZED.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
992
Exhibit A
LAND
(To Be Inserted By Title)
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
993
EXHIBIT D
Financing Plan
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
994
Sources
Permanent Sources
Description Totals
Tax Credit Equity 23,821,439$
HCD NPLH 6,257,776$
FHLB AHP 1,000,000$
City of Livermore Loan 6,500,000$
City of Livermore Predevelopment Loan 657,000$
Alameda County A1 Bonds 6,234,012$
Accrued Interest on Soft Loans 359,090$
HUD Section 202 6,947,852$
GP Capital Contribution (HUD 202 Deposit) 10,000$
Non-Permanent Sources
Construction Loan - First Citizens Bank 30,605,014$
Total Permanent Sources 52,966,260$
Uses
Description Budgeted
CONSTRUCTION
Unit Construction 27,313,036$
Site Work 1,291,650$
Contractor Overhead & Profit 1,636,619$
General Conditions 1,352,030$
Contractor Insurance & Bonds 532,305$
Owner Furnishings 158,000$
PV System 900,000$
Hard Cost Contingency 2,033,044$
CONSTRUCTION TOTAL 35,216,684$
ARCHITECTURAL FEES
Architecture 1,299,926$
ARCHITECTURAL FEES TOTAL 1,299,926$
SURVEY & ENGINEERING
Survey 960,000$
Enviro Assessment &Testing 60,000$
SURVEY & ENGINEERING TOTAL 1,020,000$
Description Budgeted
CONST INTEREST & FEES
Construction Loan Fees 357,418$
Construction Lender Costs 35,000$
Construction Lender Legal 140,000$
Contruction Loan Interest 3,554,505$
Accrued Interest 359,090$
Prevailing Wage Monitoring 42,000$
Construction Title & Recording 105,000$
CONST INTEREST & FEES TOTAL 4,593,013$
PERM FINANCING COSTS
Perm Title & Recording 25,000$
PERM FINANCING TOTAL 25,000$
OWNER LEGAL
Owner Legal - Org, RE, Synd & Perm Loan 90,000$
LEGAL TOTAL 90,000$
RESERVES
Operating Reserve 605,526$
HCD Pooled Transition Reserve Fee 20,916$
HCD NPLH Transition Reserve 217,120$
Supplemental SAHA NPLH Reserve 260,000$
Capitalized Operating Deficit Reserve 1,571,000$
RESERVES TOTAL 2,674,562$
OTHER COSTS
Other Taxes 35,000$
Permit Fees - Building 695,000$
Impact Fees 2,152,573$
Utility Connection Fees 805,000$
Builders Risk Insurance 720,000$
Appraisal 5,000$
Market Study 15,000$
Marketing & Leasing 233,528$
Construction Management 90,000$
Soft Cost Contingency 814,674$
OTHER COSTS TOTAL 5,565,775$
DEVELOPER COSTS
Developer Fee 2,200,000$
DEVELOPER COSTS TOTAL 2,200,000$
SYNDICATION COSTS
Syndication Consultant 55,000$
Syndication Legal 85,000$
Accountant Fee 25,000$
TCAC Fees 116,300$
SYNDICATION COSTS TOTAL 281,300$
52,966,260$
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
995
Unit Mix (Rent and Income Levels)
Bedrooms AMI Section 8
Total
Units
Gross
Rent
Utility
Allowance Net Rent
Proposed
Rent
Annual
Rental
Income
1 20% 16 584$ 97$ 487$ 487$ 93,504$ 1 30% 8 876$ 97$ 779$ 779$ 74,784$ 1 50% 14 1,460$ 97$ 1,363$ 779$ 130,872$ 1 50% Yes 5 1,460$ 97$ 1,363$ 1,363$ 81,780$ 1 50% 24 1,460$ 97$ 1,363$ 1,363$ 392,544$ 1 60% 9 1,752$ 97$ 1,655$ 1,655$ 178,740$ 2 30% 1 1,051$ 131$ 920$ 920$ 11,042$ 2 60% 1 2,102$ 131$ 1,971$ 1,971$ 23,657$ 2 MNGR 1 -$ 131$ -$ -$ -$ -$
-$
-$
-$
-$
-$
-$
-$
Avg AMI: 42.3% 5 79 986,923$
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
996
Cash Flow
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10 Year 11 Year 12 Year 13 Year 14 Year 15 Income
Rent 2.0% 818,652$ 835,025$ 851,726$ 868,760$ 886,135$ 903,858$ 921,935$ 940,374$ 959,181$ 978,365$ 997,932$ 1,017,891$ 1,038,249$ 1,059,014$ 1,080,194$ NPLH Rent 2.0% 76,320$ 77,846$ 79,403$ 80,991$ 82,611$ 84,263$ 85,949$ 87,668$ 89,421$ 91,209$ 93,034$ 94,894$ 96,792$ 98,728$ 100,703$ Section 8 Income 54,777$ 56,990$ 58,130$ 59,292$ 60,478$ 61,688$ 62,922$ 64,180$ 65,464$ 66,773$ 68,108$ 69,470$ 70,860$ 72,277$ 73,723$ HUD 202 PRAC Income 174,420$ 181,467$ 185,096$ 188,798$ 192,574$ 196,425$ 200,354$ 204,361$ 208,448$ 212,617$ 216,869$ 221,207$ 225,631$ 230,143$ 234,746$ Draw on NPLH COSR 2,662$ 12,848$ 223,465$ 231,200$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ 232,789$ Draw on Supplemental NPLH Reserve 56,848$ 203,152$ -$ -$ -$ -$ -$ -$ -$ D
raw on Operating Deficit Reserve 101,690$ -$ 3,768$ 1,819$ 34,929$ 52,395$ 70,623$ 89,641$ 109,479$ 130,165$ 151,729$ 174,204$ 197,623$ 222,017$ 247,423$ Laundry & Vending Income 2.0% 8,424$ 8,592$ 8,764$ 8,940$ 9,118$ 9,301$ 9,487$ 9,677$ 9,870$ 10,067$ 10,269$ 10,474$ 10,684$ 10,897$ 11,115$ POTENTIAL GROSS INCOME: 1,293,793$ 1,375,921$ 1,410,352$ 1,439,800$ 1,498,635$ 1,540,719$ 1,584,059$ 1,628,689$ 1,674,652$ 1,721,986$ 1,770,730$ 1,820,929$ 1,872,628$ 1,925,865$ 1,980,693$ LIHTC Units Vacancy 5.0% (60,874)$ (64,904)$ (66,547)$ (67,940)$ (70,801)$ (72,823)$ (74,905)$ (77,051)$ (79,262)$ (81,539)$ (83,885)$ (86,302)$ (88,792)$ (91,357)$ (94,000)$ NPLH Units Vacancy 10.0% (7,632)$ (7,785)$ (7,940)$ (8,099)$ (8,261)$ (8,426)$ (8,595)$ (8,767)$ (8,942)$ (9, 121)$ (9,303)$ (9,489)$ (9,679)$ (9,873)$ (10,070)$ EFFECTIVE GROSS INCOME: 1,225,287$ 1,303,233$ 1,335,864$ 1,363,760$ 1,419,573$ 1,459,470$ 1,500,558$ 1,542,871$ 1,586,449$ 1,631,326$ 1,677,542$ 1,725,138$ 1,774,157$ 1,824,635$ 1,876,623$ Expenses
Operating Expenses 3.0% 1,132,569$ 1,166,546$ 1,201,542$ 1,237,589$ 1,274,716$ 1,312,958$ 1,352,347$ 1,392,917$ 1,434,705$ 1,477,746$ 1,522,078$ 1,567,740$ 1,614,773$ 1,663,216$ 1,713,112$ Replacement Reserve Deposits 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ 47,400$ TOTAL EXPENSES 1,179,969$ 1,213,946$ 1,248,942$ 1,284,989$ 1,322,116$ 1,360,358$ 1,399,747$ 1,440,317$ 1,482,105$ 1,525,146$ 1,569,478$ 1,615,140$ 1,662,173$ 1,710,616$ 1,760,512$ NET OPERATING INCOME 45,318$ 89,286$ 86,922$ 78,772$ 97,456$ 99,112$ 100,812$ 102,554$ 104,344$ 106,180$ 108,063$ 109,998$ 111,984$ 114,020$ 116,111$ Required Payments
NPLH Monitoring Fee 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ 26,283$ County A1 Monitoring Fee 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ 4,800$ City Monitoring Fee 2,662$ 2,662$ 2,715$ 2,770$ 2,825$ 2,881$ 2,939$ 2,998$ 3,058$ 3,119$ 3,181$ 3,245$ 3,310$ 3,376$ 3,444$ 3,512$ CASH FLOW: 11,574$ 55,489$ 53,070$ 44,864$ 63,492$ 65,090$ 66,731$ 68,414$ 70,143$ 71,916$ 73,736$ 75,605$ 77,525$ 79,493$ 81,516$ Investor Management Fee 1,250$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ 5,000$ Par
tnership Management Fee 8,972$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ 35,887$ Residual Receipts to Soft Loans 100% 1,352$ 14,602$ 12,183$ 3,977$ 22,605$ 24,203$ 25,844$ 27,527$ 29,256$ 31,029$ 32,849$ 34,718$ 36,638$ 38,606$ 40,629$ Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
997
EXHIBIT E
Estoppel Certificate
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
998
SMRH:4927-0975-6435.1 -1-
0100-922359
60173159.1
Exhibit E
GROUND LESSOR ESTOPPEL CERTIFICATE
This Ground Lessor Estoppel Certificate (this " Certificate"), dated as of [__________], 2025, is executed by the City of Livermore, a California municipal corporation ("Ground Lessor") in favor of FIRST- CITIZENS BANK & TRUST COMPANY , its successors, transferees and assigns ("Senior Lender"), and NEF ASSIGNMENT CORPORATION , an Illinois not -for-profit corporation, as nominee (“ Investor”).
Substantially concurrently with the delivery of this Certificate, Senior Lender has made or intends to make a loan in the initial approximate stated principal amount of $[__________] (the "Loan") to PAC AVENUE, L.P., a California limited partnership ("Tenant") pursuant to, among other things, a Loan Agreement (Construction Loan) by and between Tenant and Senior Lender (the " Loan Agreement "). Tenant's obligations with respect to the Loan are secured by (among other things) a Construction Leasehold Deed of Trust, with Assignment of Leases and Rents, Security Agreement, and Fixture Filing made by Tenant with respect to the Loan (the “ Senior Deed of Trust”), encumbering (among other things) Tenant's leasehold estate under the Ground Lease (as defined below) and a ll improvements now existing or hereafter made on or within the land leased to Tenant pursuant to the Ground Lease (the "Land"). As used herein, references to the Loan and the Loan Agreement shall also include all renewals, extensions, modifications, amendments and restatements thereof, including without limitation those that increase the principal amount or the interest rate thereof or extend the maturity date thereof. Substantially concurrently with the delivery of this Certificate, Pac Avenue LLC, a Ca lifornia limited liability company, as general partner, and Investor, as limited partner, will enter into that certain Amended and Restated Limited Partnership Agreement (as may be amended, the “ Partnership Agreement”), pursuant to and subject to the conditions thereof, among other things, Investor will make capital contributions to the Partnership in the approximate aggregate principal amount of $[_____] (the “ Investment”). Ground Lessor's delivery of this Certificate to Senior Lender and Investor is a condition to Senior Lender's making the Loan and Investor making the Investment. Ground Lessor acknowledges that (i) Senior Lender is a “Lender” and the "Senior Lender" as such terms are defined in the Ground Lease, and that the Senior Lender shall be entitled to all of the rights and privileges afforded to a Lender and the Senior Lender under the Ground Lease and (ii) the Senior Deed of Trust is a “Leasehold Mortgage” and the "Senior Leasehold Mortgage" as such terms are defined in the Ground Lease, and that the Senior Deed of Trust shall be entitled to all of the rights and privileges afforded to a Leasehold Mortgage and the Senior Leasehold Mortgage under the Ground Lease.
Ground Lessor further acknowledges that Investor is a “Investor” as such term is defined i n the Ground Lease, and that Investor shall be entitled to all of the rights and privileges afforded to an Investor under the Ground Lease.
NOW, THEREFORE, for the purpose of providing information to the Senior Lender and Investor with respect to the Ground Lease (as defined below), with the understanding that the Senior Lender and Investor will rely upon the information provided herein, the undersigned Ground Lessor certifies to the Senior Lender and Investor the truth and accuracy of the following statements of fact as of the date first stated above:
1. Ground Lessor is the current "Lessor" under the Ground Lease (as defined below). Ground Lessor has not assigned or otherwise transferred all or any part of Ground Lessor's interest in the Ground Lease.
2. The "Ground Lease" consists of the documents described in paragraph 2.1 below, which have not been amended, modified or supplemented except as described in paragraph 2.1 below.
2.1 Ground Lease.
(a) Ground Lease (Phase 1 of Pacific Avenue Development Project) dated as [____________], 2025, between Ground Lessor as lessor and Tenant as lessee.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
999
SMRH:4927-0975-6435.1 -2-
0100-922359
60173159.1
(b) Memorandum of Lease dated as of [____________], 202 5, between Ground Lessor as lessor and Tenant as lessee, recorded on [____________], 2025 as Document No. [____________] in the official public records of the County of Alameda, California (" Official Records").
3. A true, correct and complete copy of the Ground Lease (including all documents listed in paragraph 2.1 above) are attached hereto as Exhibit A.
4. Ground Lessor has not encumbered its fee interest in the Land covered by the Ground Lease with any mortgage or deed of trust.
5. Ground Lessor does not hold any security deposit or letter of credit for Tenant's performance under the Ground Lease, and no security deposit or letter of credit for Tenant's performance under the Ground Lease is currently required under the terms of the Ground Lease.
6. Ground Lessor is not a party to, and to Ground Lessor's actual knowledge there is no, pending or threatened condemnation, litigation, administrative or quasi-administrative action or proceeding at law or in equity that could adversely affect the Ground Lease or the Land.
7. All of the payments required to be made by Tenant to Ground Lessor under the Ground Lease through the date first stated above have been paid in full.
8. The notice address for Senior Lender is:
First-Citizens Bank & Trust Company
222 2nd Street, 17th Floor
San Francisco, CA 94105
Attention: Community Development Finance
The Notice address for City is:
City of Livermore
1052 South Livermore Avenue
Livermore, CA 94550
Attention: City Manager
The Notice address for Investor is:
NEF Assignment Corporation
10 South Riverside Plaza
Suite 1700
Chicago, Illinois 60606
Attention: General Counsel
Email: [email protected] with subject line of SMT #83146; 83452
and:
NEF Assignment Corporation
10 South Riverside Plaza
Suite 1700
Chicago, Illinois 60606
Attention: SVP Asset Management
with a copy to:
Bocarsly Emden Cowan Esmail & Arndt LLP
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1000
SMRH:4927-0975-6435.1 -3-
0100-922359
60173159.1
633 W. Fifth Street, Suite 5880
Los Angeles, California 90017
Attention: Rachel Rosner
[Remainder of Page Left Intentionally Blank]
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1001
SMRH:4927-0975-6435.1 S-1
0100-922359
60173159.1
IN WITNESS WHEREOF, Ground Lessor has executed this Certificate in favor of the Estoppel Parties as of the date first stated above.
“GROUND LESSOR”:
CITY OF LIVERMORE,
a California municipal corporation
By: _____________________________
Marianna A. Burch, City Manager
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1002
SMRH:4927-0975-6435.1 Exhibit A
0100-922359
60173159.1
Exhibit A
Copy of Ground Lease Documents
[Attached]
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1003
EXHIBIT F
Addendum Section 202
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1004
F-1
Ver.2 7-19-12
921\33\3928482.3
Exhibit F
LEASE ADDENDUM SECTION 202
(Lessor – Lessee)
Notwithstanding any other provisions of the Ground Lease (this "Lease"), between the City of Livermore, a California municipal corporation ("Lessor"), and Pac Avenue, L.P., a California limited partnership ("Lessee"), if and so long as the Leasehold Estate is subject to a Section 202 Deed of Trust held by the Secretary of Housing and Urban Development ("HUD"), or given to the Secretary of HUD in connection with a resale, or the demised premises are acquired and held by him because of a default under said mortgage:
(1) Lessee is authorized to obtain a Section 202 Capital Advance from the Secretary of HUD, secured by a mortgage on the Leasehold Estate. Lessee is further authorized to execute a mortgage on the Leasehold Estate and otherwise to comply with the requirements of HUD for obtaining a mortgage.
(2) Intentionally omitted.
(3) If approved by the Secretary of HUD, Lessee may assign, transfer or sell its interest in the demised premises.
(4) Insurance.
(a) Insurance policies shall be in an amount, and by such companies, and in such form, and against such risks and hazards, as shall be required by any Lender and/or the Secretary of HUD.
(b) Lessor shall not take out separate insurance concurrent in form or contributing in the event of loss with that specifically required to be furnished by Lessee to HUD. Lessor may at its own expense, however, take out separate insurance which is not concurrent in form or not contributing in the event of loss with that specifically required to be furnished by Lessee.
(5) Condemnation.
(a) If all or any part of the demised premises shall be taken by condemnation, that portion of any award attributable to the improvements, or damage to the improvements, shall be paid to the mortgagee or otherwise disposed of as may be provided in the mortgage. Any portion of the award attributable solely to the taking of the land shall be paid to Lessor. After the date of taking, the annual ground rent shall be reduced ratably by the proportion which the award paid to Lessor bears to the total value of the land as established by the amount the Secretary of HUD would be required to pay upon acquisition of the fee. (b) In the event of a negotiated sale of all of any portion of the demised premises in lieu of condemnation, the proceeds shall be distributed and ground rents reduced as provided in cases of condemnation, but the approval of the Secretary of HUD shall be required as to the amount and division of the payment to be received.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1005
F-2
Ver.2 7-19-12
921\33\3928482.3
(6) Lessor agrees that, within ten (10) calendar days after receipt of written request from Lessee, it will join in any authorizations required by any governmental or other body claiming jurisdiction in connection with any work which Lessee may do hereunder, and will also join in any grants for easements for electric, telephone, gas, water, sewer and such other public utilities and facilities as may be reasonable necessary in the operating of the demised premises or of any improvements that may be erected thereon.
(7) Nothing contained in this Lease shall require Lessee to pay any franchise, estate, inheritance, succession, capital levy or transfer tax, or any other tax, assessment, change or levy upon the rent payable by Lessee under this Lease.
(8) Upon any default under this Lease which authorized the cancellation thereof by Lessor, Lessor shall give notice to the Secretary of HUD, and the Secretary of HUD, his successors and assigns, shall have the right and time within six (6) months from the date of such notice to correct the default and reinstate this Lease unless Lessor has first terminated this Lease as provided herein.
At any time after two (2) months from the date a notice of default is given to the Secretary of HUD, Lessor may elect to terminate this Lease and acquire possession of the demised premises. Upon acquiring possession of the demised premises, Lessor shall notify the Secretary of HUD. The Secretary of HUD shall have six (6) months from the date of such notice of acquisition to elect to take a new lease on the demised premises. Such new lease shall have a term equal to the unexpired portion of the term of this Lease and shall be on the same terms and conditions as contained in this Lease, except that the Secretary of HUD's liability for ground rent shall not extend beyond his occupancy under such lease. Lessor shall tender such new lease to the Secretary of HUD within thirty (30) calendar days after a request for such lease and shall deliver possession of the demised premises immediately upon execution of the new lease. Upon executing a new lease, the Secretary of HUD shall pay to Lessor any unpaid ground rentals due or that would have become due under this Lease to the date of execution of the new lease, including any taxes which were liens on demised premises and which were paid by Lessor, less any net rentals or other income which Lessor may have received on account of this property since the date of default under this Lease.
(9) All notices, demands and requests which are required to be given by Lessor, Lessee or the Secretary of HUD shall be in writing and shall be sent by registered or certified mail, postage prepaid, and addressed to:
U.S. Department of Housing and Urban Development
One Sansome Street, Suite 1200
San Francisco, California 94104
Attention: Office of Regional Counsel
unless a request for a change in this address has been sent the party giving the notice by registered or certified mail prior to the time when such notice is given. (10) This Lease shall not be modified without the consent of the Secretary of HUD.
The remainder of this page is blank.
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1006
EXHIBIT G
Schedule of Related Documents
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1007
EXHIBIT G
Schedule of Related Documents
1) Phase 1 Environmental Site Assessment dated June 2021, prepared by Geocon Consultants; Location of Record: City of Livermore
2) Affordable Housing Loan Agreement by and between the City of Livermore and Pac Avenue, L.P for Pacific Senior Apartments Phase 1, entered into after this lease agreement. Location of Record: City of Livermore.
3) The Deed of Trust with Assignment of Rents, Regulatory Agreement for Capital Advance Mixed Finance Program, the Capital Advance Mixed-Finance Program Use Agreement and the UCC Financing Statement by and between the U.S. Department of Housing and Urban Development and Pac Avenue L.P ., collectively, the “HUD 202 Loan Documents”, entered into after this lease agreement. Location of Record: City of Livermore
4) Loan Agreement (Construction Loan) by and between First Citizens Bank and Trust Company and Pac Avenue, L.P . along with the Promissory Note secured by the Construction Deed of Trust, with Assignment of Leases and Rents, Security Agreement, and Fixture Filing entered into after this lease agreement, collectively, “Senior Loan Documents”. Location of Record: City of Livermore. 5) Site Plan Design Review (SPDR) 20-005 and Subdivision (SUB) 20-001 for the Pacific Avenue Affordable Housing Project consisting of 140 affordable senior housing rental units, approved by the Livermore Planning Commission on November 16, 2021
Item 5.8
Revised Exhibit C - Ground Lease
Attachment 2
1008
1009
1010
1011
4 2024 Permitted Residential Projects
Serenity
• 399 for-sale and rental units including 60 affordable • Under Construction
Triad West Cava
• 112 for-sale units including 22 affordable
• Under Construction
Triad East Amarone
• 172 for-sale units including 34 affordable
• Under Construction
Arroyo Vista
• 435 for-sale units including 52 affordable
• Under Construction
2024 Approved Residential Projects
Isabel Crossing
• 1,299 for-sale and rental units including 363 affordable • Approved
Aura
• 164 for-sale units including 33 affordable
• Approved
Parkview
• 31 for-sale units including 6 affordable
• Approved
Garaventa Hills
• 44 for-sale units including 6 affordable
• Approved
7 8
Item 6.1
PowerPoint Presentation
1012
5 Future Residential Projects
Cornerstone
• 253 for sale and rental units including 114
affordable
• Approved January 2025
Pacific and Livermore
• 115 for-sale units including 23 affordable
• Under Review
Senior Housing and Housing with Special
Services
Assisted Living at the Well
• 84 assisted living suites, 44 memory care
suites
• Approved
Pacific Avenue Senior Living
• 140 very low and low-income senior
housing units
• Approved
9 10
Item 6.1
PowerPoint Presentation
1013
6 Recommendation
Staff recommends the City Council adopt a resolution
accepting the 2024 Housing Element Annual Progress Report. 11 Item 6.1
PowerPoint Presentation
1014
Council Member
Date of
Meeting or
Event
Committee or
Organization
Meeting or Event Type
(ex. board meeting or
ribbon cutting)
Summary of Meeting or Event
Mayor Marchand 3/12/2025 Tri-Valley Nonprofit
Alliance
Tri-Valley Mayors Summit
at the Bankhead
Provided updates and insights on City and regional activities.
Mayor Marchand 3/12/2025 Alameda County Mayors
Conference
Monthly Business
meeting
Made three Conference appointments and heard a presentation on the Alameda County Local Agency Formation Commission (LAFCo).
Mayor Marchand 3/13/2025 Livermore Chamber of
Commerce
Ribbon cutting Friday and Associates, new business
Mayor Marchand 3/13/2025 Alameda Local Agency
Formation Commission
Commission Meeting Heard a presentation and participated in the following discussion on the tax agreement between LARPD and EBRPD.
Mayor Marchand 3/13/2025 3 Valleys Community
Foundation
Grant awards program Received an update on the programs and services that 3 Valleys is supporting.
Mayor Marchand 3/14/2025 City of Livermore Ribbon-cutting Welcomed Rice n' Spice Indian Supermarket Mayor Marchand 3/14/2025 Livermore-Yotsukaido
Sister City Organization
Welcome Welcomed the arrival of the exchange students from Japan.
Mayor Marchand 3/15/2025 Livermore-Yotsukaido
Sister City Organization
Welcome
dinner/reception
Welcome dinner and reception for the students, chaperones and host families Mayor Marchand 3/16/2025 Veterans of Foreign Wars Meet, greet and St.
Patrick's Day Dinner at
Meet and greet.
Mayor Marchand 3/16/2025 Muslim Community
Center (MCC)- Pleasanton
Iftar program and
breaking of Ramadan
Heard a program from Dublin Vice Mayor Kashef Qaadri on Iftar and Ramadan. followed by a dinner.
Mayor Marchand 3/19/2025 City of Livermore Youth in Government Day Participated in mock Council meeting and job shadowing.
Mayor Marchand 3/19/2025 Livermore Yotuskaido
Sister City Organization
Met with the adult
leaders of the sister city
organization.
Gave them a tour of City Hall and the meeting Hall.
Mayor Marchand 3/20/2025 City of Livermore TV program taping Filmed Mayor's Report on TV 30 and provided an update on City activities.
Mayor Marchand 3/21/2025 ABCNorcal Apprentice graduation Spoke at the graduation ceremony.
Mayor Marchand 3/22/2025 City of Livermore Litter clean-up Worked with over 30 young and older adults picking up litter around Springtown and northern Livermore.
Mayor Marchand 3/22/2025 Islamic Center of
Livermore
Iftar breaking of fast for
Ramadan
Presentation, meet and greet, followed by traditional "breaking of the fast".
Mayor Marchand 3/22/2025 Livermore Art Association Art Show Toured the Essential Figure Show.
Item 8.0
Council Reports
1015
Council Member Date of Meeting
or Event Committee or Organization Meeting or Event Type (ex. board meeting or ribbon cutting) Vice Mayor Branning 3/12/2025 Tri-Valley Non Profit Alliance Conversation with the Mayors Vice Mayor Branning 3/13/2025 Livermore Chamber of Commerce Friday and Associates Ribbon Cutting Vice Mayor Branning 3/13/2025 Three Valleys Community Foundation Grant Event Vice Mayor Branning 3/16/2025 Muslim Community Center Community Iftar Vice Mayor Branning 3/18/2025 Livermore Downtown Inc Board Meeting Vice Mayor Branning 3/18/2025 Livermore Amador Valley Transit Authority Transit Workers Appreciation Day Vice Mayor Branning 3/19/2025 City Of Livermore and Rotary Youth in Government Day Vice Mayor Branning 3/19/2025 Livermore Chamber of Commerce Chamber Mixer Vice Mayor Branning 3/20/2025 Spectrum Meals on Wheels ride along Vice Mayor Branning 3/24/2025 Livermore Amador Valley Transit Authority Projects and Services Committee Item 8.0
Council Reports
1016
Council Member
Date of
Meeting or
Event
Committee or
Organization
Meeting or Event Type (ex. board
meeting or ribbon cutting) Summary of Meeting or Event
Council Member Barrientos 3/13/2025 Stop Waste Board Meeting Discussion on the funding stream Measure D Council Member Barrientos 3/17/2025 Meals on Wheels Ride along Met 15 clients. They are getting a $100,000 cut in funding from Trump/Musk
Council Member Barrientos 3/19/2025 Ava Community Energy Board Meeting Spent much of the time discussing whether to support SB 540. The vote was close not to support
Council Member Barrientos 3/20/2025 Sons In Retirement
Society
Lunch meeting Speaker was Loretta Kaskey. The subject was the history of the library in Livermore. We were one of the first cities to apply for funding from the state for a library
Council Member Barrientos 3/22/2025 Lions Club Cioppino fund raising for Meals on Wheels
Raised funds
Council Member Barrientos 3/23/2025 Friends of Wadi Foquin Briefing on the fate of a community in Palestine
Fund raising for Wadi Faquin. Enjoyed the cuisine of the middle east Item 8.0
Council Reports
1017
Council Member
Date of
Meeting or
Event
Committee or
Organization
Meeting or Event Type
(ex. board meeting or
ribbon cutting)
Summary of Meeting or Event
Council Member Dunbar 3/11/2025 TriValley Regional
Occupation Program
Job shadowing day for
local employers
Themes
Collaboration and communication is important everywhere Your path is a career is not linear
Connection to affordable housing (from TopCon): People from afar won't stay and locals can't afford to
Learning from failure is critical
Utilizing standards (Google Scholar) is an important skill for employers
Kids see and respond to passion
Note upcoming events
May 20th Explore Evening at Las Positas
TriValley ROP summer camps
Manufacturing Day returns in October
Council Member Dunbar 3/14/2025 Public transit ride-along with Assemblymember
Bauer Kahan
Met with a diverse group of folks, from high school students to seniors, to understand their transportation needs, how to meet them cost effectively, and upcoming challenges.
Item 8.0
Council Reports
1018
Council Member
Date of
Meeting
or Event
Committee or Organization
Meeting or Event Type (ex.
board meeting or ribbon
cutting)
Summary of Meeting or Event
Council Member Wang 3/12/2025 Tri-Valley Nonprofit Alliance (TVNPA) Conversations with Tri-Valley Mayors
The mayors of the five Tri-Valley cities/town
discussed their priorities, challenges, and
how they work together.
Council Member Wang 3/14/2025 Dublin Historical Society Dublin Shamrock Gala Annual kickoff to St. Patrick's Day weekend in Dublin
Council Member Wang 3/17/2025 League of California Cities (CalCities) Legislative briefing webinar 90-minute briefing on new legisl ation regarding housing, transportation, public
safety, environmental quality, wildfire, and
community services
Council Member Wang 3/17/2025 Tri-Valley Youth Climate Action Project (TVYCAP) and Quest Science Center
Presentation on heat mapping Work by students in Livermore, Pleasanton, and Tracy to map temperature differences
throughout Livermore
Council Member Wang 3/18/2025 Spectrum's Meals on Wheels Meal delivery ride-along Delivered meals in District 3 with volunteer Gail
Council Member Wang 3/18/2025 Livermore Amador Valley Transit Authority (LAVTA)
Lunch to celebrate Transit
Employee Appreciation Day
Council Member Wang 3/19/2025 Livermore Valley Chamber of Commerce (LVCC)
monthly mixer Hosted by Livermore Fusion Soccer Club
Council Member Wang 3/21/2025 Altamont Landfill Open Space Committee (ALOSC)
Bi-monthly Committee meeting Received an update on an outreach program to educate ranchers about
conservation easements and a presentation
on an ecosystem valuation system
Council Member Wang 3/22/2025 City of Livermore Litter pick-up event 30 volunteers, mostly high school students, picked up litter on Northfront Road for two
hours
Council Member Wang 3/22/2025 Islamic Center of Livermore (ICL) Iftar (meal eaten by Muslims at sunset to break their fast during
Ramadan)
ICL invited community members to join
them for Iftar
Council Member Wang 3/23/2025 Berkshire Hathaway HomeServices Art Show by Caroline Powers Robinson
Light and Magic and Hidden Worlds
Collections. The artwork will remain up until
April 21st.
Item 8.0
Council Reports
1019