1 AMENDED AND RESTATED PREDEVELOPMENT LOAN AGREEMENT
(Choice in Aging Senior Housing Development)
This Amended and Restated Predevelopment Loan Agreement (the "Agreement") is made as of ____________, 2022 ("Effective Date"), by and between the CITY OF PLEASANT HILL, a California municipal corporation, in its capacity as the Successor Housing Entity to the PLEASANT HILL REDEVELOPMENT AGENCY (the "City"), and SATELLITE AFFORDABLE HOUSING ASSOCIATES, a California nonprofit corporation ("Borrower").
RECITALS
A. The City Council of the City of Pleasant Hill ("City Council") adopted Redevelopment Plans ("Redevelopment Plan") for the Pleasant Hill Commons and Schoolyard Redevelopment Projects ("Redevelopment Projects"). Until February 1, 2012, the Pleasant Hill Redevelopment Agency (“Redevelopment Agency”) was responsible for carrying out the Redevelopment Plans in accordance with the Community Redevelopment Law (Health and Safety Code, Section 33000 et seq.).
B. As part of its responsibility in carrying out the Redevelopment Plans, the Redevelopment Agency was required to deposit twenty percent (20%) of all tax increment revenues received by the Redevelopment Agency into a separate Low and Moderate Income Housing Fund (“LMIHF”), to be used for the purpose of increasing, improving and preserving the community’s supply of low-and moderate-income housing.
C. Pursuant to Assembly Bill 1X 26, adopted in 2011, the decision of the California Supreme Court in California Redevelopment Association et al. v. Ana Matosantos, et al., Assembly Bill 1484, adopted in 2012, and other subsequently adopted legislation (all, collectively, the “Dissolution Act”), all redevelopment agencies throughout the State were dissolved on February 1, 2012.
D. Pursuant to the authority provided in Health and Safety Code Section 34176, the City Council adopted Resolution No. 3-12, on January 9, 2012, electing to retain all the housing assets and functions previously performed by the Redevelopment Agency and transferring all housing related rights, powers, duties and obligations of the Redevelopment Agency to the City, as the “Successor Housing Entity” to the Redevelopment Agency. Following dissolution of the Redevelopment Agency, any funds transferred to the Successor Housing Entity, together with any funds generated from housing assets, are to be maintained in a separate Low and Moderate Income Housing Asset Fund (“LMIHAF”) created by the Successor Housing Entity. Pursuant to Health and Safety Code Section 34176.1, funds in the LMIHAF shall be used in accordance with the provisions of the Community Redevelopment Law relating to the LMIHF.
E. Choice in Aging, a California non-profit corporation (“CiA”) owns that certain real property located at 490 Golf Club Road, Pleasant Hill, California (A.P.N. 153-030-004-3) (the “Site”) that CiA desires to be developed with (a) a senior housing project consisting of approximately eight-two (82) multi-family rental units, of which not less than thirty (30) shall be affordable to extremely low income households, including parking and other associated amenities (the "Housing Project"); and (b) a commercial project consisting of commercial office, health 2 care, health care services, clinic, and conference space dedicated to serving the senior community (the “Commercial Project”).
F. City previously entered into that certain Predevelopment Loan Agreement (the “Original Loan Agreement”) dated November 14, 2016 with Rehabilitation Services of Northern California, a California nonprofit corporation (predecessor by name change to CiA) pursuant to which the City agreed to advance to CiA an amount not to exceed Two Hundred Thirty-Six Thousand Dollars ($236,000.00) (the "Original Loan"), to pay a portion of the predevelopment costs for feasibility studies, and the planning and development of the Housing Project, subject to the terms and conditions set forth in the Original Loan Agreement. The Original Loan is evidenced and repayable pursuant to a promissory note dated November 14, 2016 (the “Original Note”) and is secured by a deed of trust recorded against the Property in the Official Records of Contra Costa County as Document #2016-0273235-00 (the “Original Deed of Trust”).
G. In furtherance of the development of the Housing Project, CiA entered into that certain “Amended and Restated Memorandum of Understanding by and between Satellite Affordable Housing Associates and Choice in Aging (Proposed Mixed Use Development in Pleasant Hill, CA)” dated as of July 30, 2020 (the “MOU”) with Borrower, pursuant to which CiA and Borrower agreed that Borrower would have lead responsibility for development of the Housing Project, as well as limited responsibility for the Commercial Project. The MOU anticipates that Borrower will establish a limited partnership in which Borrower or an affiliate of Borrower will serve as general partner (the “Partnership”) for purposes of securing low income housing tax credit financing for the development of the Housing Project, and that the Partnership will ground lease a portion of the Site that is generally located in the area identified as Parcel “C” on the map attached hereto as Exhibit A (the “Housing Site”) from CiA. The MOU further declares that CiA will assign and Borrower will assume the Original Loan, and Borrower will pursue the Housing Project in a manner consistent with the Original Loan. In furtherance of the MOU, substantially concurrently herewith, CiA and Borrower entered into that certain Assignment and Assumption Agreement dated ________, pursuant to which CiA assigned and Borrower assumed all the rights and responsibilities of the Original Loan Agreement (the “Assignment and Assumption Agreement”).
H. In furtherance of the Housing Project and consistent with the terms of the MOU, CiA and Borrower additionally entered into that certain Option to Ground Lease dated as of August 25, 2020 (the “Option” or the “Option Agreement”) pursuant to which CiA granted to Borrower an option to ground lease the Housing Site, pursuant to certain terms and conditions as more specifically set forth in the Option.
I. Borrower has continued to pursue the development of the Housing Project in a manner consistent with the terms of the Original Loan Agreement and the MOU.
J. On February 4, 2020, the City Council made a preliminary commitment to provide Borrower with an additional Five Hundred Thousand Dollars ($500,000.00) in predevelopment funds (the “Additional Predevelopment Funds”) for costs associated with the Housing Project as more specifically described in the predevelopment budget attached hereto and 3 incorporated herein as Exhibit F (the “Predevelopment Costs”), to be disbursed at such time that Borrower has satisfied certain milestones in furtherance of the Housing Project.
H. City and Borrower desire to enter into this Amended and Restated Predevelopment Loan Agreement to increase the Original Loan to include the Additional Predevelopment Funds, to provide the terms pursuant to which the Additional Predevelopment Funds will be disbursed, to amend the number of units that will be affordable for extremely low income households from twenty-seven to thirty, and to amend the security to be provided by Borrower to secure the Loan to reflect those property and related interests that are held by Borrower, rather than the interest in real property held by CiA.
I. This Agreement does not authorize or enable (i) the funding of any additional funds other than the Loan provided for under this Agreement, (ii) the granting of discretionary approvals, or (iii) the construction of the Housing Project. Such actions may be authorized and will become possible only upon subsequent discretionary action of the City.
NOW THEREFORE, IN CONSIDERATION of the mutual agreements, obligations, and representations, and in further consideration for the making of the Loan, the Borrower and City hereby agree as follows:
AGREEMENTS
ARTICLE 1.
LOAN TERMS
1.1 Amendment of Original Loan Agreement. The Original Loan Agreement is hereby amended, superseded and replaced in its entirety by this Agreement.
1.2 Loan.
(a) The City agrees to loan and the Borrower agrees to borrow an amount not to exceed a total of SEVEN HUNDRED THIRTY-SIX THOUSAND DOLLARS ($736,000.00) ("Loan"), subject to the conditions and terms of this Agreement. City and Borrower acknowledge that Two Hundred Thirty-Six Thousand Dollars ($236,000.00) of the Loan has already been disbursed to Borrower. The City shall make two additional disbursements of the Additional Predevelopment Funds of Two Hundred Fifty Thousand Dollars ($250,000.00) each to be used for Predevelopment Costs for a total of five hundred thousand ($500,000.000). The Loan shall be evidenced by and repayable in accordance with an amended and restated promissory note (the "Note") in substantially the form attached hereto as Exhibit B and incorporated herein by reference, which Note will amend, replace and supersede the Original Note. CiA and Borrower are in the process of pursuing a subdivision of the Site, to form the Housing Site for purposes of developing the Housing Project and to provide for the development of the Commercial Project on the remainder of the Site, and intend that upon subdivision of the Site, the Housing Site will be ground leased to Borrower pursuant to the terms of a Ground Lease in substantially the form as attached to the Option as Exhibit B (the “Ground Lease”).
Concurrently with the recordation of the Memorandum of Lease (as defined in the Ground Lease, Borrower shall record a leasehold deed of trust (the “Deed of Trust”) against the Housing 4 Site in substantially the form attached hereto as Exhibit C, which Deed of Trust shall secure the Note. The Borrower shall execute and deliver the Note and the Deed of Trust to the City prior to and as a condition to any further disbursement of the Loan, provided, however, that the Deed of Trust shall not be recorded against the Housing Site until such time that Borrower enters into the Ground Lease for the Housing Site. The Loan shall bear simple interest at the rate of three percent (3%) per annum, on the principal balance outstanding from time to time. (b) The Borrower covenants and agrees for itself, its successors, assigns, and every successor in interest to devote the Housing Project to an affordable housing project in accordance with the terms of an Amended and Restated Affordable Housing Regulatory Agreement, the form of which is attached hereto as Exhibit D (the “Regulatory Agreement”), and which will amend, replace and supersede the affordable housing regulatory agreement entered into pursuant to the Original Loan Agreement, and this Agreement for the period of time specified therein. The Borrower shall execute and deliver the Regulatory Agreement to the City prior to and as a condition to disbursement of any portion of the Loan, and the Regulatory Agreement shall be recorded against the Housing Site concurrently with recordation of the Ground Lease for the Housing Site.
(c) As additional consideration for entering into this Agreement, the Borrower shall assign to the City its rights and obligations with respect to certain agreements, plans and specifications and approvals, pursuant to the terms of an Assignment Agreement, the form of which is attached hereto as Exhibit E (the "Assignment Agreement") and incorporated herein by reference.
(d) As further additional consideration for entering into this Agreement, the Borrower shall enter into that certain Collateral Assignment of Memorandum of Understanding and Option to Ground Lease, the form of which is attached hereto as Exhibit F (the “Collateral Assignment”) and incorporated herein by reference.
(e) Upon execution and delivery by CiA and SAHA of the Collateral Assignment, the City shall execute and record such documents as are necessary to release the Property from the Original Deed of Trust and reconvey such Original Deed of Trust to CiA.1
1.3 Disbursement of Loan Funds. The City and Borrower acknowledge that the Original Loan Amount of Two Hundred Thirty-Six Thousand Dollars has been disbursed as of the date of this Agreement. City shall make two additional disbursements of the Additional Predevelopment Funds of Two Hundred Fifty Thousand Dollars ($250,000.00) each to be used for Predevelopment Costs.
(a) The first disbursement shall be made only upon satisfaction of each of the following conditions precedent:
(i) The loan shall be used only in accordance with the Section 1.6 below. The City shall disburse the loan funds to the borrower pursuant to the disbursement process set forth, provided that an initial disbursement of TWO HUNDRED FIFTY
1 The Original DOT (on CiA’s property) should be released when the MOU and Option are assigned to the City. The MOU and Option will serve as the collateral in lieu of the DOT lien on CiA’s property. 5 THOUSAND DOLLARS ($250,000.00) under this agreement (i.e., the first disbursement of the additional predevelopment funds) may occur within ten (10) days after satisfaction of all of the following conditions precedent:
(ii) The Borrower shall have executed and delivered to the City the Assignment Agreement (Exhibit E);
(iii) The Borrower shall have executed and delivered to the City the Collateral Assignment (Exhibit F), and CiA and Borrower shall both have executed and delivered to the City the Consent and Agreement of Choice in Aging in the form attached to the Collateral Assignment as Exhibit B.
(iv) The Borrower shall have executed, in recordable form where applicable, and delivered to the City the Note (Exhibit B), the Deed of Trust (Exhibit C) and the Regulatory Agreement (Exhibit D);
(v) The Borrower has obtained approvals for a general plan amendment, planned unit development (rezoning), development plan, and environmental review in accordance with the California Environmental Quality Act required for the proposed development of the Housing Project on the Site; and
(vi) The Borrower shall have delivered to the City a written request for such disbursement, together with copies of invoices or other documentation satisfactory to the City to evidence the actual Predevelopment Costs (as defined in Section 1.4, below) incurred by the Borrower, and that such Predevelopment Costs for which the funds are being disbursed are not less than Two Hundred Fifty Thousand Dollars.
(vii) In the event of any Default (as defined in Section 4.1, below) by the Borrower hereunder, following notice from the City and the expiration of any applicable cure periods, then the entire outstanding principal amount of the Note may, at the option of the City, become immediately due and payable, together with interest at the default interest rate set forth in Section 9 of the Note, commencing on the date of the Default and continuing until such time as all amounts due under the Note and the Deed of Trust are paid in full, or the Default has been cured, whichever occurs first.
(b) The second disbursement shall be made only upon satisfaction of each of the following conditions precedent:
(i) Borrower shall have satisfied all of the conditions precedent set forth in Section 1.2(d) above;
(ii) All representations and warranties made by the Borrower in this Agreement, the Note, Deed of Trust, Regulatory Agreement, Assignment Agreement, Collateral and any other related documents shall be true and correct as of the date of the proposed disbursement;
(iii) Borrower is not in Default under the terms of this Agreement or any other agreement relating to the Housing Site or the Housing Project; 6 (iv) Borrower has secured approvals for a use permit for the Housing Project, a parcel map for the Site that will, at a minimum, create a separate parcel for the Housing Site, and an architectural review permit for the Housing Project; (v) Borrower shall have entered into the Ground Lease, and recorded the Deed of Trust and Regulatory Agreement against the Housing Site; (vi) Delivery of a binding commitment by a title insurance company acceptable to the City to issue a lender’s policy of Title Insurance with any endorsements the City may reasonably require, insuring the City in the principal amount of the Loan, of the validity and priority of the Deed of Trust upon the Housing Site, subject only to liens and matters of record approved by the City in writing, and showing the Ground Lease to the Housing Site in the name of the Borrower.
(vii) Borrower shall have delivered to the City a written request for such second disbursement, together with copies of invoices or other documentation satisfactory to the City to evidence the actual Predevelopment Costs (as defined in Section 1.4, above) incurred by the Borrower, and that such Predevelopment Costs for which the funds are being disbursed are not less than Two Hundred Fifty Thousand Dollars.
1.4 City Not Liable. In no event shall the City be liable to Borrower or any other party, including but not limited to any lender, contractor or subcontractor, for any damage whatsoever which may result in whole or in part from any action or inaction of the City hereunder, including without limitation, failure or delay in funding any proceeds of the Loan, except to the extent of the City’s gross negligence or willful misconduct.
1.5 Term of Agreement. The term of this Agreement ("Term") shall commence upon the Effective Date and, unless earlier terminated as provided herein, shall remain in full force and effect for a period of fifty-five (55) years from the date of recordation of the Regulatory Agreement against the Housing Site.
1.6 Use of Funds. The Borrower shall use the proceeds of the Loan only to pay outof-pocket, third-party costs actually incurred by the Borrower, and approved by the City, for predevelopment costs for feasibility studies and the planning and development of the Housing Project on the Site, including without limitation predevelopment and entitlement costs of the Housing Project that are listed as eligible uses under the predevelopment budget attached hereto and incorporated herein as Exhibit G ("Predevelopment Costs").
1.7 Compliance with City, State and Federal Laws and Regulations. Borrower agrees at all times to observe and comply with, and to cause all of its employees, agents, subcontractors, or others working for or under Borrower to observe and comply with all local, state and federal laws and regulations that pertain to the construction, health and safety, labor, fair employment practices, equal opportunity and all other matters applicable to the Borrower, its subcontractors, and the work.
7 1.8 Repayment of Loan.
(a) All principal and interest on the Loan shall be due and payable pursuant to the terms of this Agreement upon the earlier of (i) the occurrence of any Default hereunder that remains uncured after the expiration of the applicable cure period, or (ii) Borrower’s abandonment of the Housing Project or sale or transfer of its interest in this Agreement, the Housing Project or any portion of the Housing Site, other than a transfer permitted under Section
4.02 of the Regulatory Agreement. Borrower hereby expressly acknowledges that upon expiration or earlier termination of this Agreement, Borrower shall not commit or allocate any additional Loan funds or expend any unexpended Loan funds and shall immediately return all remaining unexpended funds to the City.
(b) Borrower shall enter into the Ground Lease for the Housing Site with CiA on or before December 31, 2024. Borrower shall further secure financing with terms deemed reasonable in Borrower’s reasonable discretion, and in an amount sufficient to construct the Housing Project on the Site on or before December 31, 2024. City may, in its sole discretion, elect to extend either of these dates to allow Borrower additional time to enter into the Ground Lease secure the necessary financing, provided, however, that unless extended as provided herein, Borrower’s inability to satisfy such deadlines shall constitute a Default under this Agreement, and City may pursue any and all remedies available to it under this Agreement, including but not limited to its rights under the Deed of Trust, Assignment Agreement and the Collateral Assignment.
(c) In the event the Housing Project is constructed on the Housing Site, the Loan shall be repaid from the Residual Receipts from the Housing Project, as provided in the Note.
ARTICLE 2.
GENERAL REQUIREMENTS
2.1 Records. Borrower shall keep all records, accounts, documentation and all other materials relevant to the Housing Project for a period of not less than three (3) years from the date of termination of this Agreement. Upon reasonable prior notice to Borrower, the City shall have the right to inspect any and all records in connection with the Housing Project.
2.2 Report to City. Borrower shall file with the City periodic status reports on Borrower's progress on the development and construction of the Housing Project. Borrower shall submit the first status report to the City within one month following the Effective Date of this Agreement, and shall submit subsequent status reports every month thereafter during the Term of this Agreement or until development of the Housing Project is completed, whichever occurs first.
2.3 City Review and Inspections.
(a) Upon reasonable prior notice to the Borrower, but not less than fifteen (15) calendar days, the City may at any time during the term of this Agreement, inspect all accounting records pertaining to the planning and development of the Housing Project. 8 (b) The City may request any other information that it reasonably deems necessary to monitor compliance with the requirements set forth in this Agreement. Such information shall be promptly provided by the Borrower.
2.4 Audit.
(a) All records, accounts, documentation and other materials deemed by the City to be relevant to the planning and development of the Housing Project shall be accessible at any time to the authorized representatives of the City for the purpose of examination or audit. (b) Any expenditure from the Loan proceeds that is not authorized by this Agreement or that cannot be adequately documented shall be disallowed and must be reimbursed to the City or its designee by the Borrower. Expenditures not described in this Agreement shall be deemed authorized if the performance of such activities is approved in writing by the City prior to their commencement. Absent fraud or mistake on the part of the City, the determination by the City of the allowability of any expenditures shall be final.
2.5 Insurance and Indemnity.
(a) Indemnity. The Borrower and its successors and assigns shall defend, indemnify, protect and hold harmless the City and its elective and appointed boards, and its officers, attorneys, agents, volunteers and employees, from and against any and all liability, damages, costs, losses, claims, causes of action or expenses (the "Claims"), however caused, resulting from the gross negligence or willful misconduct of the Borrower (including any contractor or subcontractor of Borrower or any person or persons employed by or acting as agent for Borrower, its contractor or subcontractor) in connection with the performance of this Agreement or Borrower's (or subcontractor or any person or persons employed by or acting as agent for Borrower or subcontractor) predevelopment or planning for the Housing Project; except to the extent that any Claim arises out of the City’s gross negligence or willful misconduct. Borrower shall pay all reasonable costs of any necessary legal defense and all reasonable attorneys' fees of counsel approved by the City incurred in defending any Claim, whether or not actually filed in any court.
(b) Liability and Property Damage. As applicable, the Borrower, at its own costs and expense, shall at all times cause the Housing Site and the Housing Project to be insured against loss by fire, casualties, liabilities and contingencies, and in such amounts and for such periods as are reasonably acceptable to the City . Borrower, at its own costs and expense, shall also maintain automobile bodily injury and property damage insurance, including all owned, hired and non-owned equipment with combined bodily injury and property damage liability of $2,000,000. The City shall be named as additional insured and loss payee on all insurance policies. During any period of construction, Borrower shall also maintain or cause each and every contractor to maintain a builder's risk form of policy. Borrower shall not be required to maintain earthquake insurance if such insurance premiums are not economically feasible. (c) Workers' Compensation Insurance. As applicable, Borrower shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Divisions 4 and 5 of the California Labor Code and all 9 amendments thereto, and all similar applicable state or federal acts or laws; and shall indemnify, defend, protect and hold harmless the City, and its respective agents, officers and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including attorney's fees and costs presented, brought or recovered against the City, and its respective agents, officers and employees, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by Borrower under this Agreement.
(d) All insurance policies and renewals thereof shall be issued by carriers and under forms of policies satisfactory in all respects to the City. The policies shall stipulate that this insurance will operate as primary insurance and that no insurance held by the City will be called upon to contribute to a loss suffered by Borrower hereunder. (e) Borrower agrees to furnish any certificates of insurance evidencing the above-described policies as requested by the City. Such certificates must be approved by the City within ten (10) days of delivery, before any payments will be made under this Agreement.
If the City fails to approve such certificates within the aforementioned ten (10) day period, the certificates shall be deemed approved. Borrower shall provide City with immediate notice upon Borrower’s receipt of notice of cancellation or a material change in any insurance policy.
Borrower shall promptly file with the City a certified copy of the required new or renewal policy, and certificates for such policy.
(f) If, at any time during the term of this Agreement or any extension hereof, Borrower fails to maintain the required insurance in full force and effect, all work under this Agreement shall be discontinued immediately and all payments due or that become due to Borrower will be withheld until notice is received by the City that the required insurance has been restored to full force and effect and that the premiums therefor have been paid for a period satisfactory to the City. Any failure to maintain the required insurance shall constitute an event of Default.
(g) Use of Insurance Proceeds. As applicable, any proceeds Borrower receives from insurance policies issued to Borrower and/or covering the Housing Project, and any proceeds received from any governmental agency due to a partial or complete condemnation of the Housing Project, shall be applied as follows: If Borrower collects insurance proceeds arising from a fire or other casualty, then the insurance proceeds shall be applied to restore, repair, or rebuild the damage to the Housing Project caused by such casualty if such restoration, repair or rebuilding is economically feasible. If such insurance proceeds are insufficient for such purposes, the City shall not make up the deficiency. If Borrower does not make repairs or cause such repairs to be made to restore the Housing Project to its pre-casualty condition, then any insurance proceeds collected for such damage or destruction shall be used to repay the Loan, subject to the rights of senior lenders approved by the City. If the Housing Project is subject to a partial condemnation or taking, then the proceeds received therefrom shall be applied to restore the Housing Project taken, provided the City determines that such restoration is economically feasible and no Default exists under the Loan, this Agreement, the Note or the Regulatory Agreement following the expiration of all applicable cure periods. If the Housing Project is subject to a total condemnation, or if the City determines that restoration of the Housing Project is not feasible following a partial condemnation, or if a Default exists then the proceeds from any 10 condemnation award or claim for damages shall be used first to repay the Loan, with the excess, if any, paid to Borrower, subject to the rights of senior lenders approved by the City.
2.6 Restrictions on Sale, Encumbrance, and Other Acts. Borrower shall not make any sale, encumbrance, hypothecation, assignment, pledge, conveyance or transfer (collectively, "Transfer") in any form of all or any part of, or any interest in, this Agreement, the Ground Lease, the Option, the Housing Site or the Housing Project, except with the prior written approval of the City, which shall not be unreasonably withheld, conditioned or delayed.
Borrower shall deliver to the City notice of intent to Transfer within thirty (30) business days of receipt of such notice, the City shall approve or deny any such proposed Transfer. Borrower shall give the City at least thirty (30) days' prior written notice of any desired transfer and of the proposed terms of such transfer.
2.7 Assignment of City Rights. The City retains the right at its sole discretion to assign all or part of its rights under this Agreement for the purpose of ensuring compliance and enforcement of the Borrower's duties and obligations hereunder. In addition, the City may designate an agent to act on its behalf in monitoring compliance and enforcing the provisions hereof.
2.8 Evidence of Financing. During the Term of this Agreement, Borrower shall submit to the City evidence satisfactory to the City that Borrower is using best efforts, given the Housing Project's site control and discretionary approvals, to secure all construction and development financing that is adequate to complete the planning, construction and development of the Housing Project.
2.9 Prevailing Wages. City makes no representation as to whether prevailing wages are required to be paid in connection with the Predevelopment Costs for the Housing Project. In the event that prevailing wages are required to be paid for the Predevelopment Costs pursuant to Labor Code Sections 1720 et seq. the Borrower shall and shall cause any contractors and subcontractors to pay prevailing wages in connection with the planning of the Housing Project, as those wages are determined pursuant to Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations (“DIR”) and comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the DIR. Borrower shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for claims, losses, liabilities, damages (direct or consequential), compensation, fines, penalties, causes of action, administrative and judicial proceedings and orders, judgments, remedial action or requirements, enforcement actions of any kind, and all reasonable costs and expenses incurred therewith (including but not limited to reasonable attorneys’ fees and costs) or other amounts arising out of the failure or alleged failure of any person or entity (including Borrower, its contractor and subcontractors) to pay prevailing wages as determined pursuant to Labor Code Section 1720 et seq. and implementing regulation or comply with the other applicable provisions of Labor Code Sections 1720 et seq. and implementing regulations of the DIR in connection with the planning and development of the Housing Project or any other work undertaken or in connection with the Site, if it is determined that the payment of prevailing wages is required and the Borrower or its contractor, subcontractor, assignees or transferees fails to pay such prevailing wages. Borrower in giving this indemnification acknowledges the provisions of Labor Code Section 1781 and specifically 11 waives any protection, rights or claims against the City that may accrue to the Borrower pursuant to Labor Code Section 1781.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF BORROWER
3.1 Representations and Warranties. The Borrower hereby represents and warrants to the City as follows:
(a) Organization. Satellite Affordable Housing Associates is a duly organized, validly existing California nonprofit corporation and is in good standing under the laws of the State of California.
(b) Authority of Borrower. The Borrower has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver this Agreement, the Note and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (c) Authority of Persons Executing Documents. This Agreement, the Note, the Deed of Trust, the Regulatory Agreement, the Assignment Agreement, the Collateral Assignment and all other documents or instruments executed and delivered, or to be executed and delivered, by the Borrower pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of the Borrower, and all actions required under the Borrower's respective organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement, the Note, the Deed of Trust, the Regulatory Agreement, the Assignment Agreement, the Collateral Assignment and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken (to the extent such actions are required as of the date of the executions and delivery of the abovenamed documents). (d) Valid Binding Agreements. This Agreement, the Note, the Deed of Trust, the Regulatory Agreement, the Assignment Agreement, the Collateral Assignment and all other documents or instruments which have been executed and delivered by the Borrower pursuant to or in connection with this Agreement constitute, or if not yet executed or delivered, will constitute when so executed and delivered, legal, valid and binding obligations of the Borrower enforceable by and against it in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, moratorium, and other similar laws affecting the rights of creditors generally and general principals of equity.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement, the Note, the Deed of Trust, the Regulatory Agreement, the Assignment Agreement or the Collateral Assignment by the Borrower or of any other documents or instruments executed and delivered, or to be executed and delivered by the Borrower, pursuant to this Agreement, nor the performance by the Borrower of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or 12 regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever, to the knowledge of Borrower, binding on the Borrower, or any provision of the organizational documents of the Borrower, or will conflict with or constitute a breach of or a default under any agreement to which the Borrower is a party, or will result in the creation or imposition of any lien upon any assets or property of the Borrower, other than liens established pursuant hereto.
(f) Compliance with Laws; Consents and Approvals. The planning and development of the Housing Project will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency as applicable. (g) Pending Proceedings. The Borrower is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower, or the Housing Project, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to the Borrower, materially and adversely affect the Borrower's ability to repay the Loan. (h) Financial Information. All financial data and information made available by the Borrower to the City fairly present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of the Borrower from that shown by any financial data or information provided to the City. (i) Sufficient Funds. With this Loan, the Borrower will use best efforts to hold or secure sufficient funds and/or binding commitments for sufficient funds to pay predevelopment expenses and all other costs for the planning and development of the Housing Project.
ARTICLE 4.
DEFAULTS AND REMEDIES
4.1 Event of Default. The following shall constitute an event of default (“Default”):
(i) a representation or warranty made or given in this Agreement, the Note, the Deed of Trust, the Regulatory Agreement the Assignment Agreement or the Collateral Assignment proves to be false or misleading; or (ii) material failure or delay by Borrower to perform any covenant, condition or provision of, or in the event of any other Default under, this Agreement, the Note, the Regulatory Agreement, the Deed of Trust, the Assignment Agreement, the Collateral Assignment or any other document affecting the Site or the Housing Project within the timeframes required by this Agreement.
(a) Borrower shall be in Default under this Agreement if it fails to perform any material term or condition of, or in the event of any other Default under, this Agreement, the Note, the Deed of Trust, the Regulatory Agreement or the Assignment Agreement, and after receipt of written notice of such failure to perform, fails to cure the breach within thirty (30) days of receipt of said notice, or in the event such breach cannot be cured within thirty (30) days, fails 13 to immediately commence and diligently prosecute such cure until said breach has been fully remediated, except that Borrower shall be in Default if it fails to enter into the Ground Lease or secure financing on or before the dates set forth in Section 1.8(b) of this Agreement, even if Borrower continues to diligently prosecute cure of such cure. If Borrower Defaults with regard to any provision of this Agreement, the City may terminate this Agreement and Borrower shall be liable to the City for repayment of all amounts due and owing under the Note and Deed of Trust plus any damages caused by such Default.
(b) Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies or deprive either such party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
4.2 Remedies. Upon the happening of an event of Default, the non-defaulting party may pursue any remedy allowed at law or in equity, including but not limited to, accelerating payment under the Note, applying to any State court for specific performance of this Agreement or, for a Default by Borrower, any remedies available to City under the Deed of Trust, Assignment Agreement or Collateral Assignment, including but not limited to assuming all Agreements, Plans and Specification and Land Use Approvals for the Housing Project, including but not limited to the MOU and Option Agreement with CiA, which City may then utilize to complete the Housing Project, or assign to a third party assignee to be used for in furtherance of the Housing Project, as more specifically set forth in the Assignment Agreement and the Collateral Assignment. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative; and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same Default or any other Default by the other party.
ARTICLE 5.
MISCELLANEOUS PROVISIONS
5.1 Conflict of Interest. No employee, agent, consultant, director, officer, elected or appointed official or member of the City has or may obtain a personal or financial interest in or benefit from the Borrower, the Site or the Housing Project or in any contract or subcontract or agreement, or the proceeds thereof, relating to the Site or the Housing Project.
5.2 No Discrimination. The Borrower covenants by and for itself and its successors and assigns that there shall be no discrimination against or segregation of a person or of a group of persons on 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, with respect to any or the planning or development work to be undertaken by the Borrower under this Agreement. All contracts made or entered into by the Borrower, its successors or assigns, as to any such work shall contain or be subject to substantially the nondiscrimination or nonsegregation clauses set forth in Health and Safety Code Section 33436. 14 5.3 No Member Liability. No member, official, director, employee or agent of the City shall be personally liable to Borrower in the event of any Default or breach by the City or for any amount which may become due to Borrower or on any obligations under the terms of this Agreement.
5.4 Legal Actions.
(a) In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions shall be instituted in the Superior Court of Contra Costa County, State of California. (b) In the event that any legal action is commenced by the Borrower against the City, service of process on the City shall be made by personal service upon the City Manager or City Clerk, or in such other manner as may be provided by law. In the event that any legal action is commenced by the City against the Borrower, service of process on the Borrower shall be made in such manner as may be provided by law.
5.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative; and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same Default or any other Default by the other party.
5.6 Entire Agreement; Amendment.
(a) This Agreement may be executed in duplicate originals, each of which shall be deemed to be an original.
(b) This Agreement, the exhibits and the documents referenced in this Agreement constitute the entire understanding and agreement of the parties, and supersede all negotiations or previous agreement between the parties with respect to all or any party of the subject matter hereof.
(c) This Agreement may be amended only by a writing signed by authorized representatives of the City and the Borrower; the City Manager shall be authorized to act on behalf of the City.
ARTICLE 6.
MISCELLANEOUS
6.1 Notice. Any notice required or authorized under this Agreement shall be effective if, and only if, in writing and if, and only if, mailed, postage prepaid, by registered or certified mail, to the party in question at the address shown below:
15 Borrower: Satellite Affordable Housing Associates
1835 Alcatraz Ave.
Berkeley, CA 94703
Attn: Chief Executive Officer
City : City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Attn: City Manager
6.2 No Waiver. No failure to enforce or delay in enforcing or exercising any right or remedy available under this Agreement shall impair the exercise of such right or remedy or the exercise of a similar right or remedy on a subsequent occasion.
6.3 Severability. Should any provision of this Agreement be found invalid by a court or other body of competent jurisdiction, said invalidity or ineffectiveness shall not affect the validity of the remaining provisions which shall remain in force to the maximum extent possible.
6.4 Titles and Headings. The titles and headings in this Agreement are for convenience only and shall not be construed to affect the meaning or construction of any provision of this Agreement.
6.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.
6.6 Attorneys' Fees. The prevailing party shall be entitled to receive the amount of its legal expenses, including reasonable attorneys' fees, expert legal fees and other legal costs and expenses, in the event of any legal action brought under or to enforce the provisions of this Agreement.
6.7 Signs. During the development period, the City may place or require to be placed signs at the site of the Housing Project stating the City is providing financing. The signs shall indicate in a typeface and size commensurate with its funds that the City is a source of financing.
6.8 Force Majeure. In addition to specific provisions of this Agreement, performance by either party shall not be deemed to be in Default where delays or Defaults are due to war, acts of terrorism, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of transportation or any other similar causes beyond the control or without the fault of the party claiming an extension of time to perform. Failure to obtain adequate financing for any component of the Housing Project shall not constitute grounds for an extension under this Section. An extension of time for any cause set forth in this Section will be deemed granted if notice by the party claiming such extension is sent to the other within ten (10) business days from the commencement of the cause and such extension of 16 time is not rejected in writing by the other party within ten (10) business days of receipt of the notice.
6.9 City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by the City, the City Manager or his or her designee is authorized to act on behalf of the City unless specifically provided otherwise or the context should require otherwise.
6.10 Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. [SIGNATURE PAGE FOLLOWS]
17 IN WITNESS WHEREOF, the City and the Borrower have executed this Agreement as of the date first set forth above.
CITY:
CITY OF PLEASANT HILL, a California
municipal corporation, in its capacity as the
Successor Housing Entity to the PLEASANT
HILL REDEVELOPMENT AGENCY
By: __________________________________
June Catalano, City Manager
APPROVED AS TO FORM:
By: _____________________________
Janet Coleson,
City Attorney
ATTEST:
_________________________________
Carol W. Wu, City Clerk
BORROWER:
SATELLITE AFFORDABLE HOUSING
ASSOCIATES,
a California nonprofit corporation
By:________________________________
Susan Friedland, Chief Executive Officer
Exhibit A
1 EXHIBIT A
MAP OF HOUSING SITE
[Parcel C in map attached behind this cover page]
Exhibit A
2 Exhibit B
1 EXHIBIT B
FORM OF AMENDED AND RESTATED PROMISSORY NOTE
[PREDEVELOPMENT LOAN]
(Choice in Aging Senior Housing Development)
Cumulative Total Not to Exceed _________________, 2022
$736,000.00 Pleasant Hill, California
For value received, Satellite Affordable Housing Associates, a California non-profit corporation ("Borrower" or “Maker”), promises to pay the CITY OF PLEASANT HILL, in its capacity as the Successor Housing Entity to the PLEASANT HILL REDEVELOPMENT AGENCY, or order ("City" or “Payee”), the total cumulative amount not to exceed SEVEN HUNDRED THIRTY-SIX THOUSAND DOLLARS ($736,000.00) (the "Loan"), or so much as may be disbursed by the City from time to time pursuant to Section 1.6 of the Agreement (defined in Section 1, below) for approved Predevelopment Costs, together with interest at the rate of three percent (3%) per annum, simple interest, accruing against the principal balance outstanding from time to time.
1. Purpose. This Note amends, restates and supersedes that certain Promissory Note in the principal amount of Two Hundred Thirty-Six Dollars ($236,000.00) dated November 14, 2016 and executed by Choice in Aging, a California non-profit corporation (formerly known as Rehabilitation Services of Northern California), Borrower’s predecessor in interest, in favor of the City (the “Original Note”).
2. Following dissolution of the Pleasant Hill Redevelopment Agency (“Redevelopment Agency”), the City elected to retain all housing related rights, powers, duties and obligations of the Redevelopment Agency. Following dissolution of the Redevelopment Agency, any funds transferred to the City, as the Successor Housing Entity, together with any funds generated from housing assets, are to be maintained in a separate Low and Moderate Income Housing Asset Fund (“LMIHAF”) created by the Successor Housing Entity. Pursuant to Health and Safety Code Section 34176.1, funds in the LMIHAF shall be used in accordance with the provisions of the Community Redevelopment Law relating to the LMIHF.
Borrower currently has an option to ground lease a portion of certain real property located at 490 Golf Club Road, Pleasant Hill, California (such portion, the “Housing Site”), pursuant to an Option to Ground Lease dated as of August 25, 2020 by and between Choice in Aging, a California nonprofit corporation (“CiA”), and Borrower (the “Option Agreement”) and shall enter into a ground lease for the Housing Site with Choice in Aging the current owner of the larger parcel located at 490 Golf Club Road. Borrower desires to develop the Housing Site with (a) a housing project consisting of approximately eight-two (82) multi-family rental units, of which not less than thirty (30) units shall be affordable to extremely low income households, including parking and other associated amenities ("Housing Project") to be rented to senior citizens.
Exhibit B
2 Due to circumstances acknowledged by both the City and Borrower, and in furtherance of the Housing Project proposed to be developed on the Housing Site, substantially concurrently herewith, the City and Borrower have entered into that certain Amended and Restated Predevelopment Loan Agreement, dated ___________, 2022 (the "Agreement") whereby the City agreed to advance to the Borrower the Loan funds to pay a portion of the predevelopment costs for the planning and development of the Housing Project, subject to the terms and conditions set forth in the Agreement. The terms and conditions of the Agreement, which, among other things, allow for acceleration of this Note upon the occurrence of certain events of default, are hereby incorporated by reference. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Agreement.
3. Loan. This amended and restated promissory note (this "Note") evidences the Loan in the amount not to exceed SEVEN HUNDRED THIRTY-SIX THOUSAND DOLLARS ($736,000.00), representing funds advanced to the Borrower, from time to time, under the Agreement.
4. Security. Payment of this Note is secured by an assignment of Borrower’s interest in the “Amended and Restated Memorandum of Understanding by and between Satellite Affordable Housing Associates and Choice in Aging (Proposed Mixed Use Development in Pleasant Hill, CA)” dated as of July 30, 2020 (the “MOU”) and the Option Agreement pursuant to a “Collateral Assignment,” and an assignment of Borrower’s interest in certain agreements, plans and specifications and approvals to pursuant to the terms of an “Assignment Agreement”. The Assignment Agreement and Collateral Assignment are both more specifically described in the Agreement, and are both executed by Borrower concurrently herewith. The City acknowledges and agrees that in connection with development of the Housing Project, Borrower and CiA intend to subdivide the larger parcel located at 490 Golf Club Road, and that upon completion of such subdivision Borrower shall ground lease the Housing Site from CiA, and develop the Housing Project on the Housing Site. Concurrently with entering into the ground lease for the Housing Site and recording a memorandum thereof against the Housing Site, the security for this Note will be an amended and restated deed of trust, assignment of rents, security agreement and fixture filing (the “Deed of Trust”) from Borrower to City upon the Housing Project and Borrower shall record the Deed of Trust against the Housing Site in accordance with the terms of the Agreement.
5. Affordable Housing Project. The Housing Project shall consist of approximately eighty-two (82) residential apartment units (each a “Unit”), thirty (30) of which are made available and rented to persons or families whose income does not exceed thirty percent (30%) of the Area Median Income (the “Affordable Units”), and one (1) unrestricted Unit set aside for an onsite manager. For purposes hereof, “Area Median Income” shall mean the area median income for Contra Costa County as published by the California State Department of Housing and Community Development from time to time. The gross monthly rent for the Affordable Units shall not exceed one-twelfth of 30% of 30% of the Area Median Income, adjusted by household size appropriate for the Unit. The Housing Project shall be maintained and operated in accordance with that certain Amended and Restated Affordable Housing Regulatory Agreement by and between City and Borrower, dated ________________, 2022, and recorded concurrently with the Deed of Trust (“Regulatory Agreement”).
Exhibit B
3 6. Maturity Date. All principal and interest due hereunder shall be due and payable in full upon the earlier of (i) the occurrence of any Default under the Agreement, the Note, the Deed of Trust or the Regulatory Agreement that remains uncured after the expiration of the applicable cure period, or (ii) Borrower’s abandonment of the Housing Project or sale or transfer of its interest in the Agreement, the Housing Project or any portion of the Site, other than a transfer permitted under Section 4.02 of the Regulatory Agreement; or (iii) fifty-five (55) years after the date hereof (the “Maturity Date”).
7. Repayment. Beginning at the end of Borrower’s first fiscal year following the issuance of a certificate of occupancy for the Housing Project, Borrower shall make annual payments of principal and interest to the City in an amount equal to the Residual Receipts Payment defined herein. The payments described hereinabove shall be paid to City no later than one hundred twenty (120) days after the end of Borrower’s fiscal year. Residual Receipts Payments received by City shall be credited first to accrued but unpaid interest, then to current interest due and owing, and lastly to principal.
A. The “Residual Receipts Payment” shall equal twenty-five percent (25%) of the Residual Receipts, as defined below. The Residual Receipts Payment as set forth herein constitutes the cumulative annual payment due to the City under this Note.
B. For the purposes of this Note, “Residual Receipts” shall mean the sum of money computed as follows:
i. All rents, revenues, consideration or income (of any form) derived by Borrower in connection with or relating to the ownership or operation of the Housing Project, including any net revenue derived from any refinancing of the Housing Project and any revenue from contributions, loans or grants which is not required to meet future project obligations (but excluding tenants’ security deposits, partner capital contributions and similar advances) less all of the following: all customary and reasonable costs and expenses in connection with the operation and maintenance of the Housing Project approved by City in the budget described below, including but not limited to premiums for property and liability insurance, utility services not paid directly by tenants, maintenance and repair, security services and payments for social/supportive services, asset management fees not to exceed $18,000 per year (subject to an annual 3% increase), a partnership management fee in the amount of $7,500 per year increased annually by 4%, deferred developer fee, provided that the aggregate developer fee does not exceed the maximum fee allowed by TCAC or pursuant to any other agreements entered into between the Borrower and City, property management fees not to exceed $65 per unit per month, increasing annually by up to 3%; payments of principal and interest due on financing from sources reviewed and approved in writing by City (including on development and deficit loans made by Borrower or any partner of Borrower); provided, however, that no such written approval from City shall be required with respect to development and deficit loans made by Borrower or any partner of Borrower to prevent a Default or other material breach under any of the additional borrower financing; amounts approved by City expended to restore the Housing Project after a casualty loss or condemnation; reasonable and customary cost for accounting and auditing the books and records of the Housing Project; Exhibit B
4 taxes; franchise tax filing fees; local, state and federal monitoring compliance fees; and deposits to Housing Project reserves approved by City or required by any other lender or the tax credit investor.
ii. Notwithstanding the generality of the foregoing, the following items are not expenses or deductible in computing Residual Receipts:
(a) Payment of any fees or expenses or of any portion of the Residual Receipts to Borrower, except as expressly provided in Section 6.B.i, above; (b) Income taxes imposed upon Borrower’s income; and
(c) Payment of interest on any indebtedness of Borrower to any affiliate of Borrower (individual or entity) or to any other third-party lender or partner not otherwise approved by City;
(d) Depreciation, cost recovery, amortization and similar items which do not involve the expenditure of cash.
8. Payment Location. Payment shall be made in lawful money of the United States to the City at 100 Gregory Lane, Pleasant Hill, CA 94523. The place of payment may be changed from time to time as the City may from time to time designate in writing.
9. The occurrence of any of the following shall constitute an event of default (“Default”) under this Note: (i) Borrower fails to pay any amount due hereunder within fifteen (15) days of its due date; (ii) Any other Default by Borrower under this Note, or any Default by Borrower under the Agreement, the Deed of Trust or the Regulatory Agreement after the expiration of applicable notice and cure periods; (iii) Borrower becomes insolvent or the filing or initiation of bankruptcy or insolvency proceedings by or against Borrower, whether voluntary or involuntary that is not dismissed within thirty (30) days of initiation, or if Borrower makes a general assignment for the benefit of creditors or states its inability to pay its debts as they mature; or (v) Borrower dissolves or liquidates.
Borrower shall not be considered in Default under this Note until the expiration of all notice and cure periods provided to Borrower. Upon the occurrence of any uncured event of Default, or at any time thereafter, at the option of the City hereof and without notice, the entire unpaid principal and interest owing on this Note shall become immediately due and payable. However, this option may be exercised at any time following any such event, and the acceptance of one or more installments thereafter shall not constitute a waiver of City’s option. City’s failure to exercise such option shall not constitute a waiver of such option with respect to any subsequent event.
City’s failure in the exercise of any other right or remedy hereunder or under any agreement which secures the indebtedness or is related thereto shall not affect any right or remedy and no single or partial exercise of any such right or remedy shall preclude any further exercise thereof.
10. Default Interest Rate. At all times when Borrower is in Default hereunder by reason of Borrower's failure to pay principal due under this Note or any amounts due under the Exhibit B
5 Deed of Trust securing this Note, the interest rate on the sums as to which Borrower is in Default (including principal, if City has elected to declare it immediately due and payable), shall be the lower of (i) Ten Percent (10%) per annum, or (ii) the highest rate then allowed by law, commencing as of the date of the Default until paid in full, or until the Default has been cured, whichever is applicable.
11. Waivers. Borrower and any endorsers hereof and all others who may become liable for all or any part of this obligation, severally waive presentment for payment, demand and protest and notice of protest, and of dishonor and nonpayment of this Note, and expressly consent to any extension of the time of payment hereof or of any installment hereof, to the release of any party liable for this obligation, and any such extension or release may be made without notice to any of said parties and without any way affecting or discharging this liability.
12. Costs. Borrower agrees to pay immediately upon demand all reasonable costs and expenses of City including without limitation reasonable attorneys' fees:
(i) if after Default and the expiration of all notice and cure periods this Note is placed in the hands of an attorney or attorneys for collection; (ii) if after a Default hereunder or under the Agreement, the Deed of Trust or the Regulatory Agreement, City finds it necessary or desirable to secure the services or advice of one or more attorneys with regard to collection of this Note against Borrower, any guarantor or any other party liable therefor or to the protection of its rights under this Note, the Agreement, the Deed of Trust, the Regulatory Agreement or other loan document executed in connection with the Housing Project; (iii) if Borrower seeks to have the Site abandoned by or reclaimed from any estate in bankruptcy, or attempts to have any stay or injunction prohibiting the enforcement or collection of this Note or prohibiting the enforcement of the Deed of Trust or any other agreement evidencing or securing this Note lifted by any bankruptcy or other court; or
(iv) if Borrower shall be made a party to or shall reasonably intervene in any action or proceeding, whether in court or before any governmental entity, affecting the Site or the title thereto or the interest of the City under the Deed of Trust, including, without limitation, any form of condemnation or eminent domain proceeding, City shall be reimbursed by Borrower immediately upon demand for all reasonable costs, charges and reasonable attorneys’ fees incurred by City in any such case, and the same shall be secured by the Deed of Trust as a further charge and lien upon the Site.
13. Notices. Any notices provided for in this Note shall be given by mailing such notice by certified mail, return receipt requested at the address stated in this Note or at such address as either party may designate by written notice.
14. Successors. This Note shall be binding upon Borrower, its successors, and assigns.
Exhibit B
6 15. Governing Law. This Note shall be construed in accordance with and be governed by the laws of the State of California.
16. Severability. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, Borrower has executed this Note as of the date first written above.
BORROWER:
Satellite Affordable Housing Associates, a
California nonprofit corporation
By:___________________________
Susan Friedland
Its: Chief Executive Officer
DO NOT RECORD
Exhibit C
1 EXHIBIT C
FORM OF DEED OF TRUST
(Choice in Aging Senior Housing Development)
When Recorded Mail Document
To:
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, California 94523
Attn: City Manager
Exempt from recording fees pursuant
to Government Code §27383
APN: 153-030-004 Space Above This Line For Recorder’s Use Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (Choice in Aging Senior Housing Development)
This Deed of Trust is made as of _____________, 20__, among SATELLITE AFFORDABLE HOUSING ASSOCIATES, a California non-profit corporation (“Trustor”), whose address is 1835 Alcatraz Avenue, Berkeley, California 94703, OLD REPUBLIC TITLE COMPANY, a California corporation (“Trustee”), and the CITY OF PLEASANT HILL, a California municipal corporation whose address is 100 Gregory Lane, Pleasant Hill, CA 94523 (“Beneficiary”).
For the purposes and upon the terms and conditions in this Deed of Trust, Trustor grants, transfers, and assigns to Trustee, in trust, with power of sale and right of entry and possession, the following property and any interest therein (collectively, the “Trust Estate”): (a) Trustor’s leasehold interest in and to that certain real property in the City of Pleasant Hill, County of Contra Costa, State of California, described as set forth in Exhibit “A” attached hereto and incorporated herein by reference, as provided by that certain Ground Lease dated ___________, 20__ as may be amended from time to time, which was memorialized by a Memorandum of Ground Lease recorded as Document No. _______ on ________, as may be amended from time to time (“Ground Lease”), by and between Trustor and the fee owner of the property (“Real Property”); (b) all buildings and other improvements and structures now or hereafter located on the Real Property (collectively, the “Improvements” and together with the Real Property shall sometimes be referred to as the “Property”); (c) all existing and future leases, subleases, subtenancies, licenses, agreements and concessions relating to the use, occupancy or enjoyment of all or any part of the Property, together with any and all guaranties and other agreements relating to or made in connection with any of the foregoing (individually, a “Lease”, and collectively, the “Leases”); and (d) all rents, issues, income, revenues, royalties, profits, proceeds and earnings now or hereafter payable with respect to or otherwise derived from the ownership, use, management,
DO NOT RECORD
Exhibit C
2 operation, leasing or occupancy of the Property, including, without limitation, cash or security deposited under any of the leases to secure the performance by the lessees of their obligations thereunder (collectively, the “Rents”).
1. Secured Obligations. Trustor makes the grant, conveyance, transfer and assignment herein for the purpose of securing the following obligations (the “Secured Obligations”): (a) payment of the sum of Seven Hundred Thirty-Six Thousand Dollars ($736,000) with interest thereon according to the terms of an amended and restated promissory note (the “Note”) dated _________, 20__, executed by Trustor in favor of Beneficiary or order and any extension or renewals thereof; (b) payment of such further sums as Trustor or the then record owner of the Property may borrow from Beneficiary, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust; and (c) performance of each agreement of Trustor set forth herein or in the Amended and Restated Predevelopment Loan Agreement entered into by and between Trustor and Beneficiary dated __________, 20__ (the “Loan Agreement”), or the Amended and Restated Affordable Housing Regulatory Agreement entered into by and between Trustor and Beneficiary dated __________, 20__ (the “Regulatory Agreement”). Capitalized terms not defined herein are defined as set forth in the Loan Agreement.
2. Maintenance and Repair. Trustor shall (a) keep the Property in good condition and repair and not remove or demolish any building; (b) complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed; (c) pay when due all claims for labor performed and materials furnished; (d) comply with all laws affecting the Property or requiring any alterations or improvements to be made; (e) not commit or permit waste; and (f) cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of the Property may be reasonably necessary.
3. Insurance. Trustor shall maintain hazard insurance against loss by fire, hazards included with the term “extended coverage,” and any other hazards for which Beneficiary requires insurance, and liability insurance. The insurance carrier and the insurance policies and amounts of coverage shall be reasonably acceptable to Beneficiary, the policies shall name Beneficiary as a loss payee or an additional insured, as applicable, the policies shall include Beneficiary as an additional insured, as applicable, and shall require 30 days’ prior notice to Beneficiary before the policy is modified or terminated.
4. Defense of Security. Trustor shall appear in and defend any action or proceeding purporting to affect the security or the rights or powers of Beneficiary or Trustee. Trustor shall pay all costs and expenses, including costs of evidence of title and attorneys’ fees, in any such action or proceeding in which Trustee or Beneficiary may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
5. Payment of Taxes and Liens. Trustor shall pay (a) at least 10 days before delinquency, all taxes and assessments affecting the Property, including water stock assessments; (b) when due, all encumbrances, charges and liens, with interest, on the
DO NOT RECORD
Exhibit C
3 Property, which are or appear to be prior or superior to this Deed of Trust; and (c) upon demand all costs, fees and expenses of this Deed of Trust. If Trustor fails to make any payment or to do any act provided for in this Deed of Trust, then Beneficiary or Trustee may, without obligation to do so, and with or without notice to or demand upon Trustor, and without releasing Trustor from any obligation under this Deed of Trust: (w) make or do the same in such manner and to such extent as either may deem necessary to protect the security, Beneficiary or Trustee being authorized to enter upon the Property for such purposes; (x) appear in or commence any action or proceeding purporting to affect the security, or the rights or powers of Beneficiary or Trustee; (y) pay, purchase, contest or settle any encumbrance, charge or lien which in the judgment of either appears to be senior to this Deed of Trust; and (z) in exercising any such powers, pay allowable expenses, including attorneys’ fees.
6. Reimbursement of Costs. Trustor shall pay upon demand all sums expended by Beneficiary or Trustee provided for in this Deed of Trust or allowed by law, with interest from date of expenditure at the maximum rate provided in the Note.
7. No Waiver. By accepting payment of any sum after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums or declare a default for failure to pay.
8. Reconveyance. That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed of Trust and said note or notes to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals of such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as “the person or persons legally entitled thereto.”
9. Assignment of Rents. Trustor hereby absolutely and unconditionally assigns to Beneficiary all of the rents, issues, profits, royalties, revenues, income and other benefits (collectively, the "Rents") derived from the Property, whether now due, past due or to become due, and hereby gives to and confers upon Beneficiary, either directly or through a receiver, the right, power and authority, but not the obligation, to collect the Rents, and to sue, either in the name of Trustor or Beneficiary, for all such Rents and to apply the same to the indebtedness secured hereby in such order as Beneficiary may determine in its sole discretion. This assignment of Rents is intended to create and shall be construed to create an absolute assignment to Beneficiary of all of Trustor’s right, title and interest in the Rents, the foregoing, so long as no default exists by Trustor in the payment of any indebtedness secured hereby, or in any other covenant contained herein, or in said note or notes or in any other document evidencing or securing such indebtedness, Trustor shall have the right to collect all Rents from the Property and to retain, use and enjoy the same. Upon the occurrence of such a default, without the necessity of demand or other notice to Trustor or any other act to enforce Beneficiary’s interest pursuant to this assignment, Trustor shall have no interest whatsoever in the Rents that are received by Trustor after a default, and all such Rents shall be received and held by Trustor in
DO NOT RECORD
Exhibit C
4 constructive trust for Beneficiary and delivered promptly to Beneficiary, or to a court-appointed receiver for the Property, without the necessity for further notice to, or demand upon, Trustor. Upon the occurrence of such a default and at any time thereafter during the continuance thereof, Beneficiary may, at its option, send any tenant of the Property a notice to the effect that: (a) a default has occurred; (b) Beneficiary has elected to exercise its rights under this assignment; and (c) such tenant is thereby directed to thereafter make all payments of Rents to or for the benefit of Beneficiary or as Beneficiary shall direct. Any such tenant shall be entitled to rely upon any notice from Beneficiary and shall be protected with respect to any payment of Rents made pursuant to such notice, irrespective of whether a dispute exists between Trustor and Beneficiary and Beneficiary with respect to the existence of a default or the rights of Beneficiary hereunder. Any such tenant shall not be required to investigate or determine the validity or accuracy of such notice or the validity or enforceability of this assignment. Trustor hereby agrees to indemnify, defend and hold any such tenant harmless from and against any and all losses, claims, damages or liabilities arising from or related to any payment of Rents by such tenant made in reliance on and pursuant to such notice.
10. Default and Foreclosure. Subject to the rights of any senior lender, upon default by Trustor in payment or performance of any Secured Obligation, subject to any applicable cure period, Beneficiary may declare all sums secured immediately due and payable by delivery to Trustee of a declaration of default and demand for sale and of a notice of default and of a notice of sale, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of Trust, said note or notes and all documents evidencing expenditures secured by this Deed of Trust. Upon default of any obligation secured by this Deed of Trust and acceleration of all sums due, Beneficiary may instruct Trustee to proceed with a sale of the Property under the power of sale granted in this Deed of Trust, noticed and held in accordance with California Civil Code Sections 2924, et seq., as such statutes may be amended from time to time. Trustor waives all rights it may have to require marshaling of assets or to require sales of assets in any particular order, including any rights under California Civil Code Sections 2899 and 3455.
11. Substitution of Trustee. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee.
12. Successors and Assigns. This Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term “Beneficiary” shall mean the owner and holder,
DO NOT RECORD
Exhibit C
5 including pledgees, of the secured note or notes, whether or not named as Beneficiary herein.
13. Trustee Acceptance. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
14. Further Assurances. Trustor shall, at its own cost and expense, do, execute, acknowledge, and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignments, transfers, and assurances as Trustee or Beneficiary shall from time to time reasonably require, for better assuring, conveying, assigning, transferring, and confirming unto Trustee the Property and rights hereby conveyed or assigned or intended now or hereafter so to be, or which Trustor may be or may hereafter become bound to convey or assign to Trustee, or for carrying out the intention or facilitating the performance of the terms of this Deed of Trust, or for filing, registering, or recording this Deed of Trust. Trustor shall, on demand, execute and deliver, and hereby authorizes Trustee and Beneficiary, or either of them, to execute in the name of Trustor, to the extent it may lawfully do so, one or more financing statements, chattel mortgages, or comparable security instruments, to evidence more effectively the lien hereof. Immediately upon the execution and delivery of this Deed of Trust, and thereafter from time to time, Trustor shall cause this Deed of Trust, and any security instruments creating a lien or evidencing the lien hereof upon any personal property and each instrument of further assurance, to be filed, registered, or recorded in such manner and in such places as may be required by any present or future law in order to publish notice of and fully to protect the lien hereof upon, and the title of Trustee to, the Property encumbered hereby.
15. Condemnation and Insurance Proceeds. Immediately upon obtaining knowledge of the institution of any proceedings for the condemnation or other taking of all or any portion of the Property, or knowledge of any casualty damage to the Property, or damage in any other manner, Trustor shall immediately notify Beneficiary thereof. Subject to the rights of any senior lender, Trustor hereby authorize and empower Beneficiary as attorney-in-fact for Trustor to make proof of loss, to adjust and compromise any claim under the insurance policies covering the Property, to appear in and prosecute any action arising from such insurance policies, to collect and receive insurance proceeds, and to deduct therefrom Beneficiary's expenses incurred in the collection of such proceeds; provided, however, that nothing contained in this Section shall require Beneficiary to incur any expense or take any action hereunder. Subject to the rights of any senior lender, Trustor hereby authorizes and empowers Beneficiary, at Beneficiary's option, as attorney-in-fact for Trustor, to commence, appear in and prosecute, in Beneficiary's or Trustor's name, any action or proceeding relating to any condemnation or other taking of all or any part of the Property, whether direct or indirect, and to settle or compromise any claim in connection with such condemnation or other taking. Subject to the rights of any senior lender, the proceeds of any award payment or claim for damages, direct or consequential, in
DO NOT RECORD
Exhibit C
6 connection with any condemnation or other taking, whether direct or indirect, of the Property, or any part thereof, or for conveyances in lieu of the Property, or any part thereof, shall be paid to Beneficiary. The foregoing powers of attorney are coupled with an interest and are irrevocable. Subject to the rights of any senior lender, Trustor hereby authorizes Beneficiary to apply such awards, payments, proceeds or damages relating to condemnation of the Property and insurance covering the Property, after the deduction of Beneficiary's expenses incurred in the collection of such amounts, subject to the requirements of applicable law and the provisions hereof, to restoration or repair of the Property or to payment of the sums secured by this Deed of Trust. Subject to the rights of any senior lender, Beneficiary shall be under no obligation to question the amount of any compensation, awards, proceeds, damages, claims, rights of action, and payments relating to condemnation or other taking of the Property or insured casualty affecting the Property, and may accept the same in the amount in which the same shall be paid. Trustor shall execute such further evidence of assignment of any awards, proceeds damages or claims arising in connection with such condemnation or taking or such insurance as Beneficiary may reasonably require. Notwithstanding the above, but subject to the rights of any senior lender, the Beneficiary shall release all insurance and condemnation proceeds to Trustor to be used to reconstruct the improvements on the Property provided that Beneficiary determines that such restoration, repair or rebuilding is economically feasible. Subject to the rights of any senior lender, if such insurance proceeds shall be insufficient for such purposes, Trustor shall make up the deficiency. If the Housing Project is subject to a partial condemnation or taking, then subject to the rights of any senior lender, the proceeds received therefrom shall be applied to restore the Housing Project taken, provided the Beneficiary determines that such restoration is economically feasible and no default exists under the Loan Documents following the expiration of all applicable cure periods. If the Housing Project is subject to a total condemnation, or if Beneficiary determines that restoration of the Housing Project is not feasible following a partial condemnation, or if an uncured default exists then subject to the rights of any senior lender, the proceeds from any condemnation award or claim for damages shall be used first to repay all sums under the Note, with the excess, if any, paid to Trustor, subject to the rights of senior lenders.
16. Severability. If any one or more of the provisions contained in this Deed of Trust shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Deed of Trust, but this Deed of Trust shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein or therein, but only to the extent of such invalidity.
17. Estoppel Certificate. Trustor shall, within 10 days of a written request from Beneficiary, furnish Beneficiary with a written statement, duly acknowledged, setting forth the sums secured by this Deed of Trust and any right of set-off, counterclaim or other defense which exists against such sums and the obligations of this Deed of Trust.
18. California Uniform Commercial Code Security Agreement; Fixture Filing. Trustor hereby grants Beneficiary a security interest in all personal property of Trustor located on the Property and wherever located and used in any way in connection
DO NOT RECORD
Exhibit C
7 with or in any way relating to the Property, and whether now owned or hereafter in existence, acquired or created (including equipment, inventory, goods, documents, instruments, general intangibles, chattel paper, accounts, accounts receivable, deposit accounts and contract rights), and all fixtures of Trustor now owned or hereafter in existence, acquired or created on, of or relating to the Property, and all substitutions, replacements, additions, accessions and proceeds (including insurance proceeds) of all of the foregoing (collectively, the “Personal Property”). Beneficiary may file this Deed of Trust, or a reproduction hereof, in the real estate records or other appropriate index, as a financing statement for the Personal Property. Any reproduction of this Deed of Trust or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Trustor shall execute and deliver to Beneficiary, upon Beneficiary's request, any financing statements, as well as extensions, renewals and amendments thereof, and reproductions of this Deed of Trust in such form as Beneficiary may reasonably require to perfect a security interest with respect to the Personal Property. Trustor shall pay all costs of filing such financing statements and any extensions, renewals, amendments and releases thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements Beneficiary may reasonably require. Without the prior written consent of Beneficiary, Trustor shall not create or suffer to be created pursuant to the California Uniform Commercial Code any other security interest in the Personal Property.
Upon Trustor's breach of any covenant or agreement of Trustor contained in this Deed of Trust, including the covenants to pay when due all sums secured by this Deed of Trust, Beneficiary shall have the remedies of a secured party under the California Uniform Commercial Code and, at Beneficiary's option, may also invoke any remedies provided in this Deed of Trust as to the Personal Property. In exercising any of such remedies, Beneficiary may proceed against the Property and any of the Personal Property separately or together and in any order whatsoever, without in any way affecting the availability of Beneficiary’s remedies under the California Uniform Commercial Code or the remedies provided in the Deed of Trust. This Deed of Trust also covers goods which are or which are to become fixtures on the Property and constitutes and is filed as a fixture filing under the California Uniform Commercial Code.
19. Due-On-Sale or Encumbrance. Except as set forth in the Loan Agreement, and subject to the rights of any senior lender, if all or any part of the Property, or any interest therein, or any beneficial interest in Trustor (if Trustor is not a natural person or persons but is a corporation, partnership, trust, limited liability company or other legal entity), is sold, transferred, mortgaged, assigned, pledged, or further encumbered, whether directly or indirectly, whether voluntarily or involuntarily or by operational law, Beneficiary may, at Beneficiary’s option, declare all of the sums secured by this Deed of Trust to be immediately due and payable, and Beneficiary may invoke any remedies permitted by this Deed of Trust.
[Signature on following page]
DO NOT RECORD
Exhibit C
8 The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed to Trustor at Trustor's address hereinbefore set forth.
TRUSTOR:
SATELLITE AFFORDABLE HOUSING ASSOCIATES,
a California non-profit corporation
By: ____________________________
Susan Friedland
Its: Chief Executive Officer
Exhibit C
9 EXHIBIT A
PROPERTY LEGAL DESCRIPTION
[to be inserted] 2
2 Exhibit to be agreed following subdivision of the property; this legal description will be limited to that portion of the subdivided property on which the housing is to be constructed.
Exhibit C
10 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.
State of California
County of )
On before me,
, Notary
Public
(insert name and title of the officer)
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.
Signature (Seal)
Exhibit D
1 EXHIBIT D
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Attn.: City Manager
Exempt from recording fees pursuant to
Government Code Sec. 27383
AMENDED AND RESTATED
AFFORDABLE HOUSING REGULATORY AGREEMENT
This Amended and Restated Affordable Housing Regulatory Agreement dated ______________________, 2022 (the “Regulatory Agreement”), is between the CITY OF PLEASANT HILL, a municipal corporation, in its capacity as the Successor Housing Entity to the Pleasant Hill Redevelopment Agency (the “City”) and SATELLITE AFFORDABLE HOUSING ASSOCIATES, a California nonprofit corporation (“Borrower”).
RECITALS
A. The City intends to create affordable rental housing opportunities for persons and families of low income, very low income and extremely low income. The City and Rehabilitation Services of Northern California (predecessor by name change to CiA, defined below), the owner of the Property, previously entered into a Predevelopment Loan Agreement dated November 14, 2016 (the “Original Loan Agreement”), pursuant to which the City made a loan to Borrower for the purpose of paying a portion of the predevelopment costs for the planning and developing of an approximately 82-unit multi-family rental housing project (the “Housing Project”) to be developed on certain property owned by Borrower (the “Property”) as more particularly described in Exhibit “A”, attached hereto and incorporated herein by this reference, which shall include not less than 27 units that will be available at an affordable rent to persons and families of extremely low income levels, who quality as senior citizens under California Civil Code Section 51.3, as the same may be amended from time to time.
B. Under the Original Loan Agreement, the City provided Borrower with a loan in the amount of TWO HUNDRED THIRTY-SIX THOUSAND DOLLARS ($236,000) (the “Original Loan”).
As a condition of the Original Loan Agreement, the City entered into that certain Affordable Housing Regulatory Agreement recorded in the Official Records of the County of Contra Costa as Document No. 2016-0273234-00 (the “Original Regulatory Agreement”).
C. Choice in Aging, a California nonprofit corporation (“CiA”) has entered into a ground lease for the Property with Borrower. In furtherance of the Project, Borrower and City entered into that certain Amended and Restated Loan Agreement, dated _________, 2022 (the “Loan Agreement”), Exhibit D
2 pursuant to which the City agreed to increase the total amount to be loaned to Borrower for predevelopment costs associated with the Project to SEVEN HUNDRED THIRTY-SIX THOUSAND DOLLARS ($736,000.00), and Borrower has agreed to commit to restrict additional units to be affordable to extremely low income households as more specifically set forth herein.
D. This Regulatory Agreement supersedes and replaces the Original Regulatory Agreement in its entirety, and shall, subject to the terms and conditions set forth herein, require that not less than thirty (30) of the Housing Units included in the Housing Project shall be rented to Eligible Households, as defined herein for a minimum of fifty-five (55) years following the recordation of this Regulatory Agreement.
AGREEMENT
NOW THEREFORE, the parties acknowledge and agree as follows:
ARTICLE 1. ELIGIBLE HOUSEHOLDS
1.01 Households meeting the income restrictions as set forth in Section 2.01 shall be referred to as “Eligible Households.”
ARTICLE 2. AFFORDABILITY REQUIREMENTS FOR HOUSING PROJECT
2.01 Rent and Income Restrictions. From the date of recordation of this Regulatory Agreement, and for fifty-five (55) years thereafter, Borrower by and for itself and any successors in interest, hereby covenants and agrees that upon completion of the Housing Project, the Borrower shall limit the rental of thirty (30) of the Housing Units (the “Affordable Units”) to persons or families who qualify as senior citizens under California Civil Code Section 51.3, as the same may be amended from time to time, and whose income does not exceed 30% of the Area Median Income (the “Eligible Households”). One unit in the Housing Project shall be a manager’s unit and shall be unrestricted so long as said manager’s unit is occupied by an on-site property manager. For purposes hereof, “Area Median Income” shall mean the area median income for Contra Costa County as published by the U.S. Department of Housing and Urban Development (HUD). The gross monthly rent (excluding any supplemental rental assistance from the State of California, the federal government or any other public agency to those tenants or on behalf of those units) for the Affordable Units shall not exceed one-twelfth of 30% of 30% of the Area Median Income, adjusted by household size appropriate for the unit. Notwithstanding the foregoing, rent levels for the Affordable Units will be established based on those required by the California Tax Credit Allocation Committee (TCAC) for Low Income Housing Tax Credit projects for Eligible Households as defined herein. During such period the other requirements of this Article 2 shall apply.
2.02 Reporting Requirements. An annual report and annual income recertifications must be submitted to the City for each of the Affordable Units. The reports, at a minimum, shall include:
A. The number of persons per unit;
B. Tenant name and initial occupancy date;
Exhibit D
3 C. Gross income per year as certified by Borrower;
D. Rent paid per month and percent of rent paid in relation to income.
The annual reports and annual income recertifications submitted by Borrower shall be in the form as provided by City.
Annual income recertifications shall also contain those documents used to certify eligibility. City may from time to time during the term of this Regulatory Agreement request additional or different information and Borrower shall promptly supply such information in the reports required hereunder. Borrower shall maintain all necessary books and records, including property, personal and financial records, in accordance with requirements prescribed by the City with respect to all matters covered by this Regulatory Agreement. Borrower, at such time and in such forms as City may require, shall furnish to City statements, records, reports, data and information pertaining to matters covered by this Regulatory Agreement. Upon reasonable advance request for examination by City, Borrower, at any time during normal business hours, shall make available all of its records with respect to all matters covered by this Regulatory Agreement. Borrower shall permit City to audit, examine and make excerpts or transcripts from these records at City’s sole cost.
City acknowledges that Borrower may be required to comply with certain reporting requirements as a condition to any Tax Credit Financing that may be obtained by Borrower for the Housing Project. City hereby agrees that, so long as said reporting requirements remain in effect, and Borrower fully complies with any such reporting requirements and provides a copy of all such reports to the City, Borrower will be deemed to have complied with the reporting requirements under this Article 2.
ARTICLE 3. PROVISION OF SERVICES AND MAINTENANCE OF PROPERTY
3.01 Maintenance. During the duration of this Regulatory Agreement, Borrower shall keep the Property in good condition, order and repair and shall not commit waste or permit impairment, demolition or deterioration of the Property; shall comply with all applicable state and federal regulations addressing the physical condition of the Property and buildings located on the Property and all applicable standards of the City of Pleasant Hill including but not limited to building standards, planning regulations, and utilities code; shall complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed and to pay when due all claims for labor performed and materials furnished; shall maintain the buildings in a habitable condition; and do all other acts which from the character or use of the Property may be reasonably necessary. City shall have the right to inspect the Property during normal business hours, provided Borrower and the occupant are given reasonable notice prior to any such inspection.
If, at any time, Borrower fails to maintain the Property, and has either failed to commence to cure such condition or to diligently prosecute to completion the condition or the condition is not corrected after expiration of thirty (30) days from the date of written notice from City to Borrower, City may perform the necessary corrective maintenance, and Borrower shall pay such costs as are reasonably incurred for such maintenance. The City shall have the right to place Exhibit D
4 a lien on the Property should Borrower not reimburse City for such costs within sixty (60) days following City’s written demand to Borrower for reimbursement of such costs. Borrower, on behalf of itself its heirs, successors and assigns, hereby grants to City and its officers, employees and agents, an irrevocable license to enter upon the Property to perform such maintenance during normal business hours after receipt of written notice from City as hereinabove described and Borrower’s failure to cure or remedy such failure within thirty (30) days of such notice. Any such entry shall be made only after reasonable notice to Borrower, and City shall indemnify and hold Borrower harmless from any claims or liabilities pertaining to any such entry by City.
ARTICLE 4. NO TRANSFERS
4.01 Permitted Transfers. Notwithstanding any other provision of this Regulatory Agreement to the contrary, City approval of an assignment or transfer of this Regulatory Agreement, the Loan, the Loan Agreement, or conveyance of the Property or any part thereof pursuant to Section 4.02 shall not be required in connection with any of the following (the “Permitted Transfers”):
(a) The conveyance or dedication of any portion of the Property to City or other appropriate governmental agency, or the granting of easements or permits, to facilitate the construction of the Housing Project;
(b) Any requested assignment for purposes of financing the construction of improvements upon the Property;
(c) Any mortgage, deed of trust, or other form of conveyance for all or any portion of any additional financing obtained by Borrower for the Housing Project, but Borrower shall notify City in advance of any such mortgage, deed of trust or other form of conveyance for financing pertaining to the Property;
(d) Any mortgage, deed of trust or other form of conveyance for restructuring or refinancing of any amount of indebtedness described in subsection (c) above; (e) A sale or transfer resulting from or in connection with a reorganization as contemplated by the provisions of the Internal Revenue Code of 1986, as amended or otherwise, in which the ownership interests of a corporation are assigned directly or by operation of law to a person or persons, firm or corporation which acquires the control of the voting capital stock of such corporation or all or substantially all of the assets of such corporation; (f) Transfer of the Project to a tax credit partnership (a “Tax Credit Partnership”) in which (i) the original Borrower, or an entity owned or controlled by Borrower, serves as a manager or general partner, or (ii) a tax credit investor that is obligated to make capital contributions serves as the limited partner;
(g) (A) Sale, transfer, conveyance or pledge of limited partnership interests in the Tax Credit Partnership, or (B) the appointment by the partners of the Tax Credit Partnership of an additional or substitute co-general partner of managing general partner in accordance with Exhibit D
5 the partnership agreement of the Tax Credit Partnership; provided the Tax Credit Partnership delivers prior written notice thereof to the City;
(h) The transfer (A) of an interest in and/or of a partner in the Tax Credit Partnership to another existing partner of the Tax Credit Partnership, or (B) of an interest in a general partner of the Tax Credit Partnership to an affiliate of any general partner, or (C) of an interest in a general partner of the Tax Credit Partnership so long as such transfer, together with any prior transfer of an interest or interests in such general partner, do not result in more than fortynine percent (49%) of the interest in such general partner having been transferred since the date hereof;
(i) The lease of residential units at the Housing Project to Eligible Households; (j) Transfer of the Housing Project or partnership interests in the Tax Credit Partnership to a general partner of the Tax Credit Partnership at the end of the fifteen-year tax credit initial compliance period;
(k) The transfer of the partnership interest of a limited partner of the Tax Credit Partnership to another party, or the redemption of the limited partner of the Tax Credit Partnership’s interest in the Tax Credit Partnership provided that, prior to any such transfer, such limited partner of the Tax Credit Partnership has paid in full its capital contribution to the Tax Credit Partnership as and to the extent required in the Tax Credit Partnership’s partnership agreement;
In the event of a transfer by Borrower under subparagraphs (a) through (k), inclusive, above, not requiring City’s prior approval, Borrower nevertheless agrees that at least thirty (30) days prior to such assignment it shall give written notice to City of such transfer and satisfactory evidence that the transferee has assumed the obligations of this Regulatory Agreement, if applicable.
4.02 City Consideration of Requested Transfer. The City agrees that it will not unreasonably withhold approval of a request made pursuant to this Section 4.02, provided (a) the Borrower delivers written notice to the City requesting such approval, and (b) the proposed assignee or transferee possesses comparable operational experience and capability, and comparable net worth and resources, as the proposed transferor or assignor, and (c) the assignee or transferee assumes the obligations of the Borrower under this Regulatory Agreement in a form which is reasonably acceptable to the City. Such notice shall be accompanied by evidence regarding the proposed assignee’s or purchaser’s qualifications and experience and its financial commitments and resources sufficient to enable the City to evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this Section 4.02 and other criteria as reasonably determined by the City. The City shall approve or disapprove the request within thirty-five (35) days of its receipt of the Borrower’s notice and all information and materials required herein. In no event, however, shall the City be obligated to approve the assignment or transfer of the Loan, Promissory Note or Deed of Trust pursuant to this Section 4.02, except to an approved transferee or assignee of the Borrower’s rights in and to the Housing Project.
Exhibit D
6 4.03 Successors and Assigns. This Regulatory Agreement shall run with the land, and all of the terms, covenants and conditions of this Regulatory Agreement shall be binding upon the Borrower and the permitted successors and assigns of the Borrower. Whenever the term “Borrower” is used in this Regulatory Agreement, such term shall include any other permitted successors and assigns as herein provided. In the event of a transfer or assignment under this Article 4, all rights and obligations of the transferor Borrower shall be assumed by the transferee Borrower and the transferor Borrower shall have no further obligation or liability under this Regulatory Agreement.
ARTICLE 5. MANAGEMENT
5.01 During the term of this Regulatory Agreement, Borrower shall promptly notify the City in the event there is any change in the property management company managing the Housing Project. Borrower shall submit a copy of such agreement to the City, provided the City shall not have the right to approve or disapprove such agreement except to ensure compliance of such agreement with the provisions of this Regulatory Agreement.
ARTICLE 6. NO DISCRIMINATION
6.01 Borrower covenants by and for itself and any successors in interest 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, nor shall Borrower itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property. Notwithstanding the above, with respect to familial status, paragraph (a) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (a) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivisions (d) of Section 51 and Section 1360 of the Civil Code and subdivision (n), (o), and (p) of Section 12955 of the Government Code shall apply to this Section.
ARTICLE 7. NONDISCRIMINATION CLAUSES
7.01 All deeds, leases or contracts made relative to the Property, the improvements thereon or any part thereof, shall contain or be subject to substantially the following nondiscrimination clauses:
A. In deeds: Borrower herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons on 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, Exhibit D
7 tenure or enjoyment of the land herein conveyed, nor shall the Borrower himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land.
Notwithstanding the foregoing, with respect to familial status, paragraph (a) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (a) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivisions (d) of Section 51 and Section 1360 of the Civil Code and subdivision (n), (o), and (p) of Section 12955 of the Government Code shall apply to the above.
B. In leases: The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions:
That there shall be no discrimination against or segregation of any person or group of persons on 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 leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased.
Notwithstanding the foregoing, with respect to familial status, paragraph (a) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (a) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11 and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivisions (d) of Section 51 and Section 1360 of the Civil Code and subdivision (n), (o), and (p) of Section 12955 of the Government Code shall apply to the above.
C. In contracts: There shall be no discrimination against or segregation of any person or group of persons on 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 land, nor shall the transferee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land.
Exhibit D
8 ARTICLE 8. NO IMPAIRMENT OF LIEN
8.01 No violation or breach of the covenants, conditions, restrictions, provisions or limitation contained in this Regulatory Agreement shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted under the Loan Agreement and this Regulatory Agreement; provided, however, that any successor of Borrower to the Property shall be bound by such covenants, conditions, restrictions, limitations and provisions, whether such successor’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.
ARTICLE 9. GENERAL
9.01 Notices to City. Notices required to be sent to the City hereunder shall be sent by certified mail, return receipt requested, to the following address as may change from time to time:
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Attn.: City Manager
9.02 Notices to Borrower. Notices required to be sent to Borrower hereunder shall be sent by certified mail, return receipt requested, to the following address as may change from time to time:
Satellite Affordable Housing Associates
1835 Alcatraz Avenue
Berkeley, CA 94703
Attn.: Chief Executive Officer
9.03 Duration. The covenants set forth in Articles 1, 2 and 3 herein shall be covenants running with the land until fifty-five (55) years from the date of recordation of this Regulatory Agreement against the Property. The covenants set forth in Articles 6 and 7 shall be covenants running with the land in perpetuity. All the covenants contained herein shall inure to the benefit of the City of Pleasant Hill and its successors and assigns and are enforceable by the City of Pleasant Hill or its successors or assigns, without regard to whether the City is an owner of any land or interest to which such covenants relate. The City and such aforementioned parties, in the event of any breach of any such covenants contained herein, following the expiration of all applicable notice and cure periods shall have the right to exercise all of its rights and remedies allowed by law and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants and agreements established in this Regulatory Agreement, without regard to technical classification and designation, shall be binding upon all parties having any right, title, or interest in the Property, or any portion thereof and on their heirs, successors in interest and assigns until the covenants terminate. The parties agree that all future deeds or transfers of interest shall show the applicable restrictions of this Regulatory Agreement Exhibit D
9 and, during the duration of this Regulatory Agreement, any transfer of the Property shall be subject to the terms and conditions of this Regulatory Agreement.
9.04 Successors and Assigns. Borrower, by and for itself and each successor to any interest in the Property, hereby specifically acknowledges and agrees to be bound by the covenants contained herein.
9.05 Amendment. This Regulatory Agreement may be amended only in writing by the City and the owner of the Housing Project.
9.06 Non-Liability of Officials and Employees of the City and the Borrower. No member, official or employee of the City shall be personally liable to the Borrower, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Borrower or its successors, or on any obligations under the terms of this Regulatory Agreement.
9.07 Relationship Between City and Borrower. It is hereby acknowledged that the relationship between the City and the Borrower is not that of a partnership or joint venture and that the City and the Borrower shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments hereto, the City shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Improvements. The Borrower agrees to indemnify, hold harmless and defend the City from any claim made against the City arising from a claimed relationship of partnership or joint venture between the City and the Borrower with respect to the development, operation, maintenance or management of the Property or the Housing Project.
9.08 City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by the City, the City Manager or his or her designee is authorized to act on behalf of the City unless specifically provided otherwise or the context should require otherwise.
9.09 Counterparts. This Regulatory Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. This Regulatory Agreement is executed in three (3) originals, each of which is deemed to be an original.
9.10 Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Regulatory Agreement or of any of its terms. References to section numbers are to sections in this Regulatory Agreement, unless expressly stated otherwise.
9.11 Interpretation. As used in this Regulatory Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Regulatory Agreement shall be interpreted as though prepared jointly by both parties.
Exhibit D
10 9.12 No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Regulatory Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Regulatory Agreement.
9.13 Modifications. Any alteration, change or modification of or to this Regulatory Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party.
9.14 Severability. If any term, provision, condition or covenant of this Regulatory Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Regulatory Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
9.15 Computation of Time. The time in which any act is to be done under this Regulatory Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any, act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
9.16 Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Regulatory Agreement, and in signing this Regulatory Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Regulatory Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Regulatory Agreement, and, they have freely signed this Regulatory Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Regulatory Agreement, and without duress or coercion, whether economic or otherwise.
9.17 Time of Essence. Time is expressly made of the essence with respect to the performance by the City and the Borrower of each and every obligation and condition of this Regulatory Agreement.
9.18 Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Regulatory Agreement including, but not limited to, releases or additional agreements.
9.19 Conflicts of Interest. No member, official or employee of the City shall have any personal interest, direct or indirect, in this Regulatory Agreement, nor shall any such member, official or employee participate in any decision relating to the Regulatory Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested.
Exhibit D
11 9.20 Governing Law. This Regulatory Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Contra Costa County.
9.21 Date of Regulatory Agreement. The date of this Regulatory Agreement shall be the date set forth in the first paragraph hereof.
Date:__________________
CITY OF PLEASANT HILL
_____________________________________
City Manager
“CITY”
APPROVED AS TO FORM:
______________________________
City Attorney
SATELLITE AFFORDABLE HOUSING
ASSOCIATES,
a California nonprofit corporation
By:
Susan Friedland
Its: Chief Executive Officer
“BORROWER”
Exhibit D
12 1345199v1 05026/0036
EXHIBIT A to
AFFORDABLE HOUSING REGULATORY AGREEMENT
Legal Description of Property
[to be inserted]3
3 Exhibit to be agreed following subdivision of the property; this legal description will be limited to that portion of the subdivided property on which the housing is to be constructed.
Exhibit D
13 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.
State of California
County of )
On before me, , Notary Public
(insert name and title of the officer)
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.
Signature (Seal)
Exhibit D
14 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.
State of California
County of )
On before me, , Notary Public
(insert name and title of the officer)
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.
Signature (Seal)
Exhibit E
1 EXHIBIT E
ASSIGNMENT OF AGREEMENTS, PLANS AND SPECIFICATIONS,
AND APPROVALS ("ASSIGNMENT")
FOR VALUE RECEIVED, the undersigned, SATELLITE AFFORDABLE HOUSING ASSOCIATES, a California nonprofit corporation (collectively, the "Borrower"), hereby assigns and transfers to the CITY OF PLEASANT HILL, a California municipal corporation (the "City"), all of its right, title and interest in and to:
(1) All architectural, design, engineering, and construction contracts and Housing Project agreements, and any and all amendments, modifications, supplements, addenda and general conditions thereto (collectively "Agreements"), heretofore or hereafter entered into by any Contractor (as defined below); (2) All plans and specifications, shop drawings, working drawings, amendments, modifications, changes, supplements, general conditions and addenda thereto (collectively "Plans and Specifications") heretofore or hereafter prepared by any Contractor (as defined below); and
(3) All Land Use Approvals, building permits, and other governmental approvals of any nature obtained for the Housing Project (collectively, the "Land Use Approvals").
This Assignment is made pursuant to the terms of the Amended and Restated Predevelopment Loan Agreement, dated as of ___________________, 2022, entered into between the Borrower and the City (the "Agreement"). Capitalized terms used but not defined in this Assignment shall have the meanings set forth in the Agreement. The Site with respect to which the City has made the Loan to the Borrower under Section 1.1 of the Agreement is described in Exhibit A attached to this Assignment.
For purposes of this Assignment, the term "Contractor" means any architect, construction contractor, engineer or other person or entity entering into Agreements with the Borrower and/or preparing Plans and Specifications for the Borrower with respect to the Housing Project.
The Borrower hereby irrevocably appoints the City as its attorney-in-fact (which agency is coupled with an interest) to, upon the occurrence of default or an event which, with notice or the passage of time or both would constitute a default under the Agreement, demand, receive, and enforce any and all of the Borrower's rights with respect to the Plans and Specifications, Agreements, Land Use Approvals, and perform any and all acts in the name of the Borrower or in the name of the City with the same force and effect as if performed by the Borrower in the absence of this Assignment.
The Borrower represents and warrants to the City that no previous assignment(s) of its rights or interest in or to the Plans and Specifications, Agreements and Land Use Approvals have Exhibit E
2 been made. So long as the City holds or retains any security interest under the Agreement, the Borrower agrees not to assign, sell, pledge, transfer, mortgage, or hypothecate (without written approval of the City Manager) its rights or interest in the above-referenced documents to any entity other than a lender except in accordance with the Agreement and related documents referred to therein.
This Assignment is made to secure: (1) payment to the City of all sums now or hereafter owing under the Agreement dated as of the date hereof made by the Borrower to the order of the City, and any and all additional advances, modifications, extensions, renewals and amendments thereof; and (2) performance by the Borrower of all its obligations under the Agreement.
This Assignment shall be governed by the laws of the State of California, except to the extent that federal laws preempt the laws the State of California, and the Borrower consents to the jurisdiction of any Federal or State Court within the State of California having proper venue for the filing and maintenance of any action arising hereunder and agrees that the prevailing party in any such action shall be entitled, in addition to any other recovery, to reasonable attorneys' fees and costs.
This Assignment shall be binding upon and inure to the benefit of the heirs, legal representatives, assigns, and successors-in-interest of the Borrower and the City; provided, however, this shall not be construed and is not intended to waive the restrictions on assignment, sale, transfer, mortgage, pledge, hypothecation or encumbrance by the Borrower contained in the Agreement.
Attachment No. 1 and the Architect's/Engineer's Consent is attached hereto and incorporated herein by reference.
Exhibit E
3 BORROWER:
SATELLITE AFFORDABLE HOUSING
ASSOCIATES, a California nonprofit
corporation
By:___________________________
Susan Friedland
Its: Chief Executive Officer
CITY:
CITY OF PLEASANT HILL, a California
municipal corporation
By:___________________________
City Manager
Exhibit E
4 ARCHITECT'S/ENGINEER'S CONSENT
The undersigned architect and/or engineer (collectively referred to as "Architect") hereby consents to the foregoing Assignment of Agreements, Plans and Specifications, and Approvals ("Assignment"), of which this Architect's/Engineer's Consent ("Consent") is a part, and acknowledges that there presently exists no unpaid claims presently due to the Architect except as disclosed to the City arising out of the preparation and delivery of the Plans and Specification to the Borrower and/or the performance of the Architect's obligations under the Agreements, as the term "Agreements" is defined in the Assignment.
Architect agrees that if, at any time, the City, as the owner of the Site, or, pursuant to its rights under the Agreement, elects to undertake or cause the completion of construction of the improvements on the Site, in accordance with the Plans and Specifications, and gives Architect written notice of such election; then so long as the Architect has received, receives or continues to receive the compensations called for under the Agreements, the City may, at its option, use and rely on the Plans and Specifications for the purposes for which they were prepared, and Architect will continue to perform its obligations under the Agreements for the benefit and account of the City in the same manner as if performed for the benefit or account of the Borrower in the absence of this Assignment.
Architect further agrees that, in the event of a breach by the Borrower of the Agreements, or any agreement entered into with Architect in connection with the Plans and Specifications, so long as the Borrower's interest in the Agreements and Plans and Specifications is assigned to the City, Architect will give written notice to the City at the address shown below of such breach.
The City shall have thirty (30) days from the receipt of such written notice of default to remedy or cure said default; provided, however, nothing herein shall require the City to cure said default or to undertake completion of construction of the improvements.
Architect warrants and represents that it/he/she has no knowledge of any prior assignment(s) of any interest in either the Plans and Specifications and/or the Agreements.
Except as otherwise defined herein, the terms used herein shall have the meanings given them in the Assignment or the Agreement, as applicable.
Exhibit E
5 Executed on __________________, 20__.
ARCHITECT:
_____________________________
Architect's Address:
_______________________ By: ________________________
_______________________ Its: _______________________
_______________________
City’s Address:
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Attention: City Manager
Exhibit F
1 EXHIBIT F
FORM OF COLLATERAL ASSIGNMENT OF
MEMORANDUM OF UNDERSTANDING AND OPTION TO GROUND LEASE
COLLATERAL ASSIGNMENT
(MEMORANDUM OF UNDERSTANDING AND OPTION TO GROUND LEASE)
THIS COLLATERAL ASSIGNMENT (MEMORANDUM OF UNDERSTANDING AND OPTION TO GROUND LEASE) (this "Assignment") is made as of __________, 2022, by SATELLITE AFFORDABLE HOUSING ASSOCIATES, a California non-profit corporation ("Assignor"), in favor of CITY OF PLEASANT HILL, a California municipal corporation ("City").
RECITALS
A. Pursuant to the terms of that certain Amended and Restated Predevelopment Loan Agreement dated as of ____________, 2022, between Assignor and City (the "Loan Agreement"), City has agreed to provide a loan to Borrower in the maximum principal amount of Seven Hundred Thirty-Six Thousand Dollars ($736,000) (the "Loan"). The Loan is, or will be, evidenced by that certain Amended and Restated Promissory Note [Predevelopment Loan] dated as of ____________, 2022 (the "Note") executed by Assignor to the order of City in the face principal amount of Seven Hundred Thirty-Six Thousand Dollars ($736,000). The City is making the Loan to Assignor to fund certain predevelopment costs incurred in connection with the development of a senior housing development consisting of approximately eighty-two (82) multi-family rental units, of which not less than thirty (30) shall be affordable to extremely low income households, including parking and other amenities (the “Housing Project”) on a portion of that certain property located at 490 Golf Club Road, Pleasant Hill, California (APN 153-030- 004-3) (the “Site”), which property is currently owned by Choice in Aging, a California nonprofit corporation (“CiA”).
B. In furtherance of the development of the Housing Project, CiA entered into that certain “Amended and Restated Memorandum of Understanding by and between Satellite Affordable Housing Associates and Choice in Aging (Proposed Mixed Use Development in Pleasant Hill, CA)” dated as of July 30, 2020 (the “MOU”) with Assignor, pursuant to which CiA and Assignor agreed that Assignor would have lead responsibility for development of the Housing Project. The MOU anticipates that Assignor will establish a limited partnership in which Assignor or an affiliate of Assignor will serve as general partner (the “Partnership”) for purposes of securing low income housing tax credit financing for the development of the Housing Project, and that the Partnership will ground lease a portion of the Site that is generally located in the area identified as Parcel “C” on the map attached hereto as Exhibit A (the “Housing Site”) from CiA.
C. In furtherance of the Housing Project and consistent with the terms of the MOU, CiA and Assignor additionally entered into that certain Option to Ground Lease dated as of Exhibit F
2 August 25, 2020 (the “Option” or the “Option Agreement”) pursuant to which CiA granted to Borrower an option to ground lease the Housing Site, pursuant to certain terms and conditions as more specifically set forth in the Option.
D. It is a condition of City making the Loan and entering into the Loan Agreement that this Assignment is executed by Assignor and delivered to City. It is further a condition of City that the Consent and Agreement of CiA (the ("Consent") be obtained in the form and content set forth as Exhibit B hereto, and that the executed Consent be attached hereto by Assignor and delivered to City together with the executed Assignment.
NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce City to make the Loan and enter into the Loan Agreement, Assignor hereby agrees in favor of City as follows:
1. Collateral Assignment. In order to induce City to make the Loan and enter into the Loan Agreement, Assignor hereby collaterally assigns to City, and grants to City a lien and security interest in and to, any and all of Assignor's rights, interests, claims, privileges and entitlements of any type or nature whatsoever under the MOU and the Option (“Assignor’s Rights”), for the purpose of securing (i) the payment of all indebtedness and the performance of all obligations of Borrower under the Loan Agreement, the Note and all other Loan Documents, as the same may be amended, extended, renewed or modified from time to time, and (ii) all future obligations of Borrower to City which are evidenced by written document(s) which recite that they are an obligation of Borrower secured by this Assignment.
2. Exercise of Assignor's Rights. So long as no Default (as defined in Section 5.1 below) has occurred and is continuing, Assignor shall be entitled to exercise all of the Assignor's Rights, subject to the provisions in this Assignment and in the Loan Agreement. Upon the occurrence of a Default, Assignor shall have no right to exercise any of the Assignor's Rights, and City shall have the absolute right to do so.
3. Covenants. Assignor covenants and agrees as follows:
A. At Assignor's sole cost to: (i) perform all covenants, representations, terms, obligations and agreements of Assignor under the MOU and the Option Agreement so as to protect Assignor's Rights and otherwise prevent a default by Assignor thereunder; (ii) enforce, or secure the performance by the other parties (i.e., other than Assignor), if any, to the MOU and Option Agreement, of the covenants, representations, terms, obligations and agreements contained in the MOU and Option Agreement; (iii) except as prohibited by any other provision hereof, enforce and secure all remedies available to Assignor under the MOU and Option Agreement; (iv) give prompt notice to City and deliver to City complete copies of any notice of default with respect to the MOU or the Option Agreement, whether the default be of CiA, Assignor or any other party to the MOU or Option Agreement; and (vi) execute and record such additional assignments of the Assignor's Rights, in form and substance reasonably acceptable to City, as City may reasonably request.
Exhibit F
3 B. Except with City’s prior written consent, not to: (i) execute any other transfer, assignment, or further encumbrance of the Assignor's Rights; (ii) create, suffer or permit any release, abatement or reduction of the material obligations and duties of CiA or any other party to the MOU or Option Agreement or any material right of Assignor under the MOU or Option Agreement with respect to the Housing Project or the Site, or excuse any material delay or failure of performance of any of the obligations, terms, covenants, agreements, undertakings, representations, or warranties of CiA or any other party to the MOU or Option Agreement; or (iv) terminate, modify or amend the MOU or Option Agreement or in any manner release or discharge CiA or any other party to the MOU or Option Agreement from any material obligations, covenants, conditions, terms, undertakings, representations, warranties or agreements to be performed by such party under the MOU or Option Agreement. Any such attempted action without City’s prior written consent shall be null and void.
4. Representations and Warranties. Assignor represents and warrants as of the date hereof that:
A. The MOU and the Option Agreement are both in full force and effect and is enforceable in accordance with its terms (except to the extent enforceability may be affected or limited by applicable bankruptcy, insolvency or other similar debtor relief laws and by general principles of equity), and to the best of Assignor's knowledge and belief, no breach or default, or event which would constitute such a breach or default after notice or the passage of time, or both, of any of the terms, covenants, obligations, undertakings, representations, warranties, agreements or conditions exist with respect to the MOU or the Option Agreement; and B. Assignor's Rights have not been encumbered, transferred or assigned to any person or entity.
5. Default and Remedies.
A. Default. "Default" shall mean (i) the existence of any “Default” as defined in Section 4.1 of the Loan Agreement, or (ii) a breach of any covenant, agreement, term, condition, obligation, representation, warranty or undertaking of Assignor contained in this Assignment which breach is not cured within thirty (30) days after written notice to Assignor and Borrower from City, or (iii) a breach of any covenant, agreement, term, condition, obligation, representation, warranty or undertaking of Assignor under the MOU or the Option Agreement which breach is not cured within thirty (30) days after written notice to Assignor from CiA.
Notwithstanding the above, any cure period stated above may be shortened or eliminated by City if City in good faith deems it necessary to exercise any remedy under Section 5.2 below before the expiration of the thirty (30) day period stated above in order to prevent a termination or loss of rights under the MOU or the Option Agreement.
B. Remedies. In addition to any and all remedies contained in the Loan Agreement, in the event of a Default, City shall have the rights and remedies set forth below and may exercise such rights and remedies at Assignor's sole cost and expense prior to, simultaneously with or subsequent to the exercise of any rights and remedies under the Loan Agreement either in person or by its agent, with or without bringing any action or proceeding or having a receiver appointed by a court, without regard to the adequacy of the security for the Exhibit F
4 obligations secured by this Assignment and the Loan Agreement and without releasing either Borrower or Assignor from any obligations under this Assignment and the Loan Agreement:
i. if CiA is in default thereunder, beyond any notice and cure periods, sue for enforcement of the MOU or Option Agreement and to settle and compromise the same; and
ii. perform all acts required of Assignor under the MOU and/or the Option Agreement; and
ii. act in Assignor's place and stead under the MOU and/or Option Agreement in all respects, including but not limited to, the making of all elections on behalf of Assignor and the giving of notices on behalf of Assignor. Assignor hereby irrevocably appoints City as Assignor's true and lawful attorney in fact to do all acts and execute any and all documents necessary or convenient to accomplish the foregoing.
C. Notice. Until City notifies CiA that the Loan is paid in full, CiA and all other parties to the MOU and Option Agreement are hereby irrevocably authorized and notified to rely upon and comply with (and shall be fully protected in so doing) any notice or demand by City for the performance of any of the City's or such other party's undertakings under the MOU and Option Agreement, and the City and all other parties to the MOU and Option Agreement shall have no duty to inquire as to whether any Default has actually occurred or is then existing.
6. Exculpation and Indemnification. This Assignment shall not cause City to be responsible or liable for performing any of the terms, agreements, undertakings, obligations, representations, warranties, covenants or conditions of the MOU or the Option Agreement. City shall not, directly or indirectly, be liable to Assignor or any other person as a consequence of: (a) the exercise of the rights, remedies or powers granted to City in this Assignment; (b) the failure or refusal of City to perform or discharge any obligation, duty or liability of Assignor under the MOU or the Option Agreement or by reason of this Assignment; or (c) any loss sustained by Assignor or any third party resulting from any act or omission of City in managing the Housing Project, the MOU or the Option Agreement after a Default; and no such liability shall be asserted or enforced against City, all such liability being expressly waived and released by Assignor.
Assignor hereby indemnifies and holds City harmless from and against any and all such liability, loss, damage, cost or expense (including reasonable attorneys' fees) which City might incur or suffer under the MOU or the Option Agreement or by reason of this Assignment, and of and from any and all claims and demands whatsoever, which may be asserted against City by reason of any alleged undertakings, obligations, representations, warranties, conditions, covenants or agreements contained in the MOU or the Option Agreement, except to the extent caused by the gross negligence or willful misconduct of City. Should City incur or suffer any liability, loss, damage, cost or expense (including attorneys' fees) under the MOU or Option Agreement or by reason of this Assignment, or in the defense of any such claims or demands, the amount of such liability, loss, damage, cost, expense and reasonable attorneys' fees shall be secured by this Assignment, and Assignor agrees to pay the same to City upon demand by City.
7. Miscellaneous.
Exhibit F
5 A. Notices. Any notices required to be sent under this Assignment shall be sent or delivered in accordance with the requirements of and to the addresses set forth in Section 6.1 of the Loan Agreement.
B. Successors and Assigns. The terms of this Assignment shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.
C. Further Assurances. The parties hereto shall, upon the request of any party, execute, acknowledge and deliver such further instruments and perform such other acts as may be necessary, desirable or proper to carry out the purposes of this Assignment.
D. Attorneys' Fees. If any action or proceeding is brought by any party to enforce or construe a provision of this Assignment, the unsuccessful party or parties in such action or proceeding, whether or not such action or proceeding is settled or prosecuted to final judgment, shall pay all reasonable attorneys' fees and costs incurred by the prevailing party.
E. Time. Time is of the essence of each term of this Assignment.
F. Headings. All headings appearing in this Assignment are for convenience only and shall be disregarded in construing this Assignment.
G. Law. This Assignment shall be governed by, and construed in accordance with, the laws of the State of California, except to the extent Federal laws preempt the laws of the State of California.
H. Waiver. No exercise of any right or remedy hereunder shall preclude the exercise of any other right or remedy or the later exercise of the same right or remedy. Waivers and approvals under this Assignment shall be in writing, and unless otherwise expressly stated waivers and approvals shall apply only to the specific circumstances addressed.
I. Termination of Assignment. Upon the performance of all obligations secured by this Assignment, this Assignment shall be void and of no effect; but the affidavit of any officer of City stating that any such obligations have not been performed shall be conclusive evidence of the validity, effectiveness and continuing force of this Assignment, and any person may, and is hereby authorized to, rely upon any such affidavit.
J. Other Security. City may take or release other security for the performance of the obligations secured by this Assignment and City may release any party primarily or secondarily liable for the performance of any such obligations and may apply any other security held by City in connection with the Loan to the satisfaction of such obligations all without prejudice to any of City's rights under this Assignment.
K. Estoppel Certificate. Within ten (10) business days after request by City, Assignor shall deliver to City, and to any party designated by City, an estoppel certificate executed by Assignor, in recordable form, certifying that this Assignment and the Subdivision Improvement Agreement are in full force and effect, that there are no defaults under the Subdivision Improvement Agreement or specifically setting forth any claimed defaults, as the case may be, and any other information reasonably requested by City.
Exhibit F
6 L. Entire Agreement; Incorporation. This Assignment contains or expressly incorporates by reference the entire and exclusive agreement of the parties (except for any applicable provisions in the Loan Agreement) with respect to the matters contemplated herein, and this Assignment shall not be amended or modified in any way except by written instrument which is executed by all parties hereto. Exhibits A and B each as attached to this Assignment, are incorporated into and made a part of this Assignment.
M. Severability. If any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions hereof shall not in any way be impaired, and there shall be substituted for the invalid, illegal or unenforceable clause, the most comparable provision which is valid, legal or enforceable, it being intended that all of the parties' respective rights and obligations hereunder shall be enforceable to the fullest extent permitted by law.
N. Counterparts. This Assignment and the attached Consent may be executed in any number of counterparts which shall constitute one agreement. Counterpart signature pages may be compiled into one or more original documents for recordation or otherwise. [Remainder of Page Left Intentionally Blank]
Exhibit F
7 IN WITNESS WHEREOF, Assignor have executed this Assignment in favor of City as of the date first above written.
Assignor:
SATELLITE AFFORDABLE HOUSING
ASSOCIATED, a California non-profit corporation
By: ________________________________
Name: Susan Friedland
Its: Chief Executive Officer
Consented to and acknowledged by:
City:
CITY OF PLEASANT HILL, a California
municipal corporation
By:
_______________________________
_
June Catalano, City Manager
Exhibit F
8 EXHIBIT A
MAP OF HOUSING SITE
[Parcel C in map attached behind this cover page]
Exhibit F
9 Exhibit F
10 EXHIBIT B
CONSENT AND AGREEMENT OF CHOICE IN AGING
This Consent and Agreement of Choice in Aging (this "Consent") is made by CHOICE IN AGING, a California non-profit corporation ("CiA") and is attached to that certain Collateral Assignment (Memorandum of Understanding and Option Agreement) dated as of __________, 2022 (the "Assignment"), made by SATELLITE AFFORDABLE HOUSING ASSOCIATES, a California non-profit corporation ("Assignor"), in favor of CITY OF PLEASANT HILL, a California municipal corporation ("City"). All capitalized terms used, but not defined, in this Consent shall have the same meanings as in the Assignment. CiA hereby agrees with City as follows:
1. Consent to Collateral Assignment. CiA hereby consents to the Assignment. CiA acknowledges and agrees that the Assignment to City is for security, and that City is not assuming and shall not be required to assume any obligations under the MOU or the Option Agreement by virtue of the Assignment, including without limitation by virtue of (i) any actions taken by City to cure any default of Assignor under the MOU or Option Agreement, or (ii) any predevelopment or development activities undertaken by City in furtherance of the Housing Project in the event of a default under the Loan Agreement or the Assignment, it being City’s intention in such event to assign the rights under the MOU and the Option Agreement to a third party. Following a Default under the Assignment and failure to cure by Assignor, City may, at its option, assume, perform and abide by all of the terms of the MOU and Option Agreement to be done, kept and performed by Assignor. Without limiting CiA’s rights to require performance of the covenants and conditions contained in the MOU and the Option Agreement, City shall not be liable to CiA or any other person for any default or breach by Assignor under the MOU or Option Agreement.
2. Transfers Following Default and Rights of City. Assignor’s granting of the Assignment to City, and any assumption of the MOU and Option Agreement by City or a third party designated by City following a Default by Assignor, shall not constitute a violation of any provision of the MOU or the Option Agreement; provided, any such third party designated by the City must have reasonable prior experience with design and construction oversight of affordable housing projects in Contra Costa County (or in another nearby county reasonably acceptable to CiA), as well as prior experience with the City’s review and permitting process for affordable housing projects. In connection with or following a Default by Assignor under the Assignment, CiA shall not unreasonably withhold its approval to any proposed assignment and assumption of Assignor's rights and obligations under the MOU and Option Agreement; provided the assignee agrees, in writing for the benefit of CiA, to assume, to perform and to abide by all of the terms, covenants and conditions of the MOU and Option Agreement to be done, kept and performed by Assignor.
3. Extension of MOU and Option Terms. Upon assumption of Assignor’s rights and obligations under the MOU and the Option Agreement by City or any third party assignee designated by City in accordance with this Consent, the deadline for Assignor to receive commitments for all financing necessary to construct the Housing and begin construction as set Exhibit F
11 forth in Section 10.A(v) of the MOU, and the expiration date of the Option Term as set forth in Section 2(a) of the Option Agreement shall both automatically and without any further action by the parties be extended to December 31, 2025.
4. Estoppel; Further Amendments. CiA certifies to City that (i) the MOU and the Option Agreement are both in full force and effect and have not been amended, (ii) there are no currently effective notices of default given or received by any party under either the MOU or the Option Agreement, and to CiA’s actual knowledge there are no events or conditions that would constitute a default under either the MOU or the Option Agreement with the giving of notice or the passage of time or both, and (iii) as of the date of this Consent, Assignor has fully satisfied all of its current obligations required under both the MOU and the Option Agreement. Any future amendments to the MOU or the Option Agreement will require the written consent of City. As used herein, the “knowledge” or “actual knowledge” of CiA means the current actual knowledge of Debbie Toth.
5. Notice and Cure Right. CiA shall send a copy of any notice of default or similar statement with respect to the MOU or the Option Agreement to City at the same time such notice or statement is sent to Assignor. In the event of any act or omission by Assignor which would give CiA the right to exercise any of its rights or remedies under the MOU or the Option Agreement, CiA shall not exercise any such right or make any such claim until it has given City written notice of such act or omission and has given City the following applicable cure period to remedy such default: (i) with respect to monetary defaults, fourteen (14) days after the expiration of Assignor's cure period with respect to such monetary default; or (ii) with respect to nonmonetary defaults, sixty (60) days after the expiration of Assignor's cure period with respect to such nonmonetary default, provided that if City commences a cure of such nonmonetary default within the prescribed period, and thereafter diligently pursues such cure to completion, the cure period shall be extended for a period not to exceed an additional ninety (90) days, to provide City sufficient time to complete such cure. Nothing in this Consent, however, shall be construed as a promise or undertaking by City to cure any default of Assignor.
All notices to City shall be given to the following address (or any other address of which City has notified CiA in writing) by certified mail or commercial courier (in each case, with proof of, delivery requested):
City: City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523
Attn: City Manager
CiA: Choice in Aging
490 Golf Club Road
Pleasant Hill, CA
Attn: Debbie Toth
Exhibit F
12 Executed on __________________, 2022.
CHOICE IN AGING,
a California non-profit corporation
By: ______________________________
Its: ______________________________
Exhibit G
1 EXHIBIT G
PREDEVELOPMENT COSTS AND BUDGET
The following are the Predevelopment Costs approved by the City to be paid with proceeds of the Loan. Any costs in addition to those set forth below shall be subject to approval by the City.
ARCHITECTURAL FEES
Architecture $260,000
ARCHITECTURAL FEES TOTAL $260,000
ENGINEERING & ENVIRONMENTAL
Survey and Civil Engineering $75,000
Geotechnical Engineering $10,000
Enviro Assessment & Testing $5,000
Arborist $5,000
ENGINEERING & ENVIRONMENTAL TOTAL $95,000
OTHER COSTS
Entitlements $144,000
Community Engagement $1,000
OTHER COSTS TOTAL $145,000
GRAND TOTAL
$500,000