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ARTICLE 1
1.1 1.2
1.3 1.4
1.5 1.6
1.7 ARTICLE 2
2.1 2.2
2.3 2.4
2.5 2.6
2.7 2.8
2.9 2.10
ARTICLE 3
3.1 3.2
3.3 3.4
ARTICLE 4
4.1 4.2
4.3 4.4
4.5 4.6
4.7 ARTICLE 5
5.1 5.2
5.3 5.4
5.5 5.6
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TABLE OF CONTENTS
SUBJECT OF AGREEMENT
Definitions . . ....
Purpose of the Agreement
The Redevelopment Plan
The Site
The Agency
Developer .
Prohibition Against Chaµge in Ownership,
and Control of Developex.
Management
ACQUISITION OF THE SITE AND CONSTRUCTION OF
THE PROJECT . . . ,
Acquisition of the Site.
Time for Close of Escrow
Conditions Precedent to Close of Escrow.
Condition of the Site.
Development of the Site.
Equal ow.ortunitY.
Completion. . .
Progress Reports.
Construction Responsibilities.
Mechanics Liens, Stop Notices, and Notices of
Completion ....... .
METHOD OF FINANCING
Project Budget ..... .
Sources of Financing
Obligation to Make the Grant.
Terms of the Grant ..... .
REQUIREMENTS DURING AND AFTER CONSTRUCTION
Information.
Records.
Inspections.
Fees and Taxes.
Indemnification and Insurance
Transfers ..
Right of Agency to Cure Defaults
USE OF THE SITE
Uses ....
Management of the Site
Maintenance of the Site
Obligation to Refrain from Discrimination
Form of Nondiscrimination and Nonsegregation
Clauses . . . . . . ...
Effect and Duration of Covenants
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1 1
3 3
4 4
4 4
5 5
5 5
7 7
8 8
9 9
10 10
10 11
11 12
13 13
13 14
14 14
15 16
16 16
17 17
18 18
19 5.7
ARTICLE 6
6.1 6.2
6.3 6.4
6.5 6.6
6.7 6.8
6.9 ARTICLE 7
7.1 7.2
7.3 7.4
7.5 7.6
7.7 7.8
7.9 7.10
7.11 7.12
7.13 7.14
7.15 7.16
7.17 7.18
7.19 7.20
7.21 ARTICLE 8
Effect of Violation of the Terms and Provisions of
this Agreement
DEFAULTS, REMEDIES AND TERMINATION
Defaults - General
Institution of Legal Actions
Applicable Law .....
Acceptance of Service of Process
Rights and Remedies are Cumulative
Damages . . ....
Specific Performance
Termination ...
Notice of Default to State
GENERAL PROVISIONS ..
Notices, Demands, and Communications Between the
Parties . . .....
Conflict of Interests .
Warranty Against Payment of Consideration for
Agreement .
Nonliability of Agency Officials
and Employees .
Force Majeure Delay: Extension
Performance .
Inspection of Books and Records ..
Approvals .
Authorized Representative of Agency
Waivers . . .. .
Time of the Essence .. .
Attorneys Fees and Costs
Severability
Non-exclusivity.
Relationship of the Parties
Complete Agreement
Terminology ...
Necessity for a Writing
Third Party Beneficiary
Authority to Sign ...
Incorporation by Reference
Interpretation of Agreement
of Time
EXECUTION OF AGREEMENT; TIME FOR ACCEPTANCE
ATTACHMENTS
of
ATTACHMENT NO. 1
ATTACHMENT NO. 2
ATTACHMENT NO. 3
ATTACHMENT NO. 4
ATTACHMENT NO. 5
ATTACHMENT NO. 6
LEGAL DESCRIPTION
PROJECT BUDGET
FORM OF AGREEMENT CONTAINING COVENANTS
SCHEDULE OF PERFORMANCE
FORM OF ENVIRONMENTAL INDEMNITY
FORM OF PERFORMANCE DEED OF TRUST
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AFFORDABLE HOUSING GRANT AGREEMENT
THIS AGREEMENT is entered into by and between THE
REDEVELOPMENT AGENCY OF THE CITY OF SANTA CLARA, (the "Agency"), and MID-PENINSULA HOUSING COALITION, a California nonprofit public benefit corporation (the "Developer") . The Agency and the Developer covenant and agree as follows:
ARTICLE 1 SUBJECT OF AGREEMENT
1.1 Definitions
For purposes of this Agreement, the following capitalized terms shall have the following meanings:
"Agreement Containing Covenants" shall mean the Agreement Containing Affordable Housing Covenants substantially in the form attached to this Agreement as Attachment No. 3, which is incorporated herein by this reference.
"Budget" shall mean the schedule of sources and uses of funds initially as provided in the form attached to this Agreement as Attachment No. 2, which is incorporated hereby by this reference, subject to amendment in accordance with this Agreement. "Certificate of Completion" shall mean the certificate to be issued by the Agency pursuant to Section 2.7 hereof, in a form sufficient to allow it to be recorded in the Official Records of the county in which the Site is situated, to evidence that construction of the Project has been completed in accordance with this Agreement.
"City" shall mean the City of Santa Clara, California.
"Close of Escrow" shall mean the point in time when the State conveys title to the Site to Developer.
"Community Redevelopment Law" shall mean the
Redevelopment Law of the State of California, as set
California Health and Safety Code Section 33000 et seq.
Community
forth in
"Construction Escrow" shall mean the escrow with First
American Title Company, to be opened by Developer for disbursement of funds for the construction of the Project pursuant to construction disbursement instructions acceptable to the State, Developer and Agency, consistent with Section 3.4 of this Agreement.
"Construction Loan" shall mean a loan by Sun Microsystems to Developer in the amount of $2,760,000, to pay a portion of the Development Costs.
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"Construction Loan Deed of Trust" shall mean the second priority deed of trust, securing the Construction Loan Note. "Construction Loan Note" shall mean the promissory note evidencing the obligation of Developer to repay the Construction Loan, which shall be assigned to the State pursuant to the DDA. "DDA" shall mean the Disposition and Development Agreement pertaining to the Site by and among the State, Developer, Emergency Housing Consortium and Sun Microsystems, which is incorporated herein by this reference.
"Development Costs" shall mean all costs and expenses incurred in acquiring the Site and developing and constructing the Project thereon.
"Drawings" shall mean the plans and specifications prepared by Developer for the development of the Site and construction of the Project, which have been approved by the City.
"Environmental Indemnity" shall mean an
substantially in the form attached to this Agreement as No. 5, which is incorporated herein by this reference.
instrument
Attachment
"Escrow" shall mean
American Title Company
accordance with the DDA.
the escrow opened by Developer with First
for the conveyance of the Site, in
"Hazardous Materials" or "Hazardous Substances" shall have the meaning set forth in the Environmental Indemnity.
"Land Loan" shall mean a loan by the State to Developer in the amount of $1,500,000, representing the purchase price of the Site. "Land Loan Deed of Trust" shall mean the first priority deed of trust, securing the Land Loan Note.
"Land Loan Note" shall mean the promissory note evidencing the obligation of Developer to repay the Land Loan.
"Performance Deed of Trust" shall mean the Deed of Trust securing Developer's obligations under this Agreement and the Agreement Containing Covenants, substantially in the form attached to this Agreement as Attachment No. 6.
"Permitted Encumbrances" shall mean the Land Loan Deed of Trust and the Construction Loan Deed of Trust.
"Project" shall mean the 33-unit multi-family housing project to be constructed on the Site by Developer pursuant to the DDA and the Drawings.
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"Schedule of Performance" shall mean the schedule attached to this Agreement as Attachment No. 4, which is incorporated herein by this reference.
"Site" shall mean the real property defined in
Description attached hereto as Attachment No. 1,
incorporated herein by this reference.
the Legal
which is
"State" shall mean the State of California, by and through its Department of General Services.
"Very Low Income" shall mean, for purposes of this Agreement, household income that does not exceed fifty percent (50%) of the median income for Santa Clara County, adjusted for family size appropriate for the residential unit, as published by the United States Department of Housing and Urban Development from time to time.
1.2 Purpose of the Agreement
(a) The purpose of this Agreement is to implement the
Community Redevelopment Law by providing a grant (the "Grant") in an amount not to exceed $2,500,000 in funds from the Agency's Low and Moderate Income Housing Fund, which funds are not federal funds or the proceeds of a tax-exempt bond issue, to assist Developer to pay a portion of the Development Costs.
(b) The Project will be used and operated for not less
than 30 years as affordable rental housing for Very Low Income households, and will be used initially as 33 units of multi-family rental housing for homeless families in need of transitional housing and related social services.
(c) The development of the Site pursuant to this
Agreement, and the fulfillment generally of the Agreement, are in the vital and best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of the applicable federal, state and local laws and requirements under which the project is to be undertaken and is being assisted.
(d) If any general provision
conflicts with a more specific provision
more specific provision shall prevail.
1.3 The Redevelopment Plan
of this Section
of this Agreement,
102
the
This Agreement is made in furtherance of the redevelopment plan for the Bayshore North Redevelopment Project which was approved and adopted by the City Council of the City on December 28, 1973 by Ordinance NO. 1283. The City Council and the governing body of the Agency have found that the use of the sc\fam\grant.3
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Agency's Low and Moderate Income Housing Funds for the Project will benefit the Redevelopment Project area,
1.4 The Site
The "Site" is that certain real property in the City which is legally described in Attachment No. 1 hereto, which attachment is incorporated herein by this reference. The Site is currently owned by the State and will be conveyed to Developer pursuant to the DDA.
1.5 The Agency
(a) The Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the Community Redevelopment Law of the State of California.
(b) The address of Agency
hereunder is at 1500 Warburton Avenue,
95050.
for purposes
Santa Clara,
of notice
California
(c) "Agency" as used in this Agreement includes The
Redevelopment Agency of the City of Santa Clara, California and any assignee of or successor to its rights, powers and
responsibilities.
1.6 Developer
(a) The Developer is a California nonprofit public
benefit corporation. The address of Developer for purposes of notice hereunder is 658 Bair Island Road, Redwood City, California 94063.
(b) "Developer" as used in this Agreement includes Mid Peninsula Housing Coalition, and any assignee of or successor to its rights, powers and responsibilities permitted by this Agreement.
1.7 Prohibition Against Change in Management and Control of Developer
(a) The qualifications and identity of the Developer are of particular concern to the City and the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Developer. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth in this Section 1.7 and in Section 4.6, below.
(b) Periodic and routine changes in board membership, as permitted or required in Developer's Articles of Incorporation, By Laws and other organizational documents, and/or periodic and sc\fam\grant .3
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routine changes in employment of management staff, shall not constitute a change in management or control of Developer for purposes of this Section, nor shall a change in not more than 49% of the directors of Developer (in the aggregate, over any 5-year period) constitute a change in management or control.
(c) Except as otherwise permitted by this Agreement, the Developer shall not assign all or any part of this Agreement to any other entity without the prior written approval of the Agency.
ARTICLE 2 ACQUISITION OF THE SITE
AND CONSTRUCTION OF THE PROJECT
2.1 Acquisition of the Site.
Developer shall take all steps reasonably necessary to close Escrow and take title to and possession of the Site in accordance with the DDA.
2.2 Time for Close of Escrow.
On or before the date established in the Schedule of
Performance, Developer shall satisfy the conditions described in Section 2.3 and complete the Close of Escrow. If, for any reason, the Close of Escrow has not occurred by the date provided therefor in the Schedule of Performance, either party may terminate this Agreement, by providing notice of termination to the other party.
2.3 Conditions Precedent to Close of Escrow.
In addition to any conditions set forth in the DDA, Developer shall not close escrow until each of the following conditions precedent to the Close of Escrow have been satisfied:
(a) Developer shall prepare and submit, and the Agency
Executive Director shall approve, a final Project Budget, to be current as of the Close of Escrow, demonstrating to the satisfaction of the Agency Executive Director that the sum of the sources of funds set forth in the Project Budget will be sufficient to pay all Development Costs.
(b) Developer shall submit to the Agency an executed
copy of the DDA, demonstrating that the State has approved the Land Loan and that the terms thereof are consistent with this Agreement. (c) Developer shall submit to the Agency evidence
acceptable to the Agency's Executive Director that the Construction Loan has been approved in an amount and subject to terms and conditions that are consistent with this Agreement.
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(d) Developer shall obtain any licenses,
permits and agreements required to construct the
accordance with this Agreement.
franchises,
Project in
(e) Developer shall deliver evidence acceptable to the
Agency Executive Director that Developer has obtained the insurance policies as required by Section 4.5 of this Agreement.
(f) Developer shall submit to the Agency a Phase One
environmental assessment, evidencing that the Property is not contaminated with Hazardous Substances and requires no remediation or clean-up.
(g) The Developer shall deliver to the Agency a good
standing certificate issued by the California Secretary of State's office indicating that the Developer exists in good standing at the time of the proposed Close of Escrow, as well as a copy of a corporate resolution indicating that Developer has duly authorized entry into and performance under this Agreement.
(h) Developer shall satisfy all conditions to the Close of Escrow and all contingencies, as set forth in the DDA. (i) Developer and Agency shall execute and cause the
Escrow Company to record and deliver the Agreement Containing Covenants and the Performance Deed of Trust, which shall be subordinate only to the Permitted Encumbrances.
(j) Developer shall execute and deliver to the Agency
the Environmental Indemnity.
(k) Developer shall prepare and submit, and the Agency
Executive Director shall approve, the Management Plan required by Section 5.2 of this Agreement and the Exterior Maintenance Program required by Section 5.3 of this Agreement.
(1) The ·Developer shall have entered into a construction contract with a contract price that is consistent with the Project Budget. Upon request, the construction contract, together with all other contracts for services necessary to construct the Project shall be submitted to the Agency Executive Director for approval.
The Agency Executive Director shall approve the contracts if they are consistent with the Project Budget.
(m) The Agency Executive Director shall determine that
Developer is in full compliance with the terms and conditions of this Agreement and all documents and instruments referred to herein or executed by Developer in furtherance of this Agreement. sc\fam\grant.3
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2.4 Condition of the Site
(a) The Agency makes no representation or warranty,
express or implied regarding the Site as to the condition of the soil or water, its geology, or the presence of known or unknown faults or otherwise. It shall be the sole responsibility of Developer, without expense to Agency, prior to the Close of Escrow, to investigate and determine the condition of the Site and the suitability of the Site for the uses proposed by Developer. If the conditions of the Site, or any part thereof, are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligation of Developer to take such action as may be necessary to place the Site and the conditions thereof in all respects in a condition entirely suitable for the uses proposed by Developer.
(b) Developer shall defend, indemnify and hold harmless the Agency, the City and their officers, agents, employees, contractors, attorneys and consultants from any claims, liability, injury, damages, costs and expenses (including, without limiting the generality of the foregoing, the cost of any required clean up of Hazardous Substances, and the cost of attorneys' fees) which may be sustained as the result of the presence or clean up of Hazardous Substances on, in, or under the Site.
(c) Developer shall: (i) (without cost or expense to
Agency) remove and/or otherwise remedy as provided by law and implementing rules and regulations, and sufficiently to adequately protect the public health and safety (including the health and safety of occupants of the Site and adjacent properties) any Hazardous Substances and soil and water contamination on, in, under and/or within the Site; or (ii) cause any party responsible under applicable law for such removal and/or remediation to perform the obligations described in clause (i) . Nothing herein shall be construed to make the Agency, the City or their respective officers, employees, contractors, agents or attorneys liable for the responsibilities under this section.
2.5 Development of the Site
(a) Developer shall develop the Site and construct the
Project in accordance with the DDA and the Drawings within the times of performance set forth in the Schedule of Performance. (b) The Developer shall construct the Project in
conformance with the Drawings approved by the City in issuing a building permit for the Project, as modified by any change orders permitted or approved by the State pursuant to the DDA. sc\ f am\grant .3
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(c) The Developer shall cause all work performed in
connection with the Project to be performed in compliance with (1) all applicable laws, ordinances, rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter, and (2) all directions, rules and regulations of any fire marshall, health officer, building inspection, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or other · authorization that may be required by any governmental agency having jurisdiction, and the Developer shall be responsible for the procurement and maintenance thereof, as may be required of the Developer and all entities engaged in work on the Project. (d) All construction work and professional services
shall be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work or service in the State of California.
2.6 Equal Opportunity.
During the construction of the Project there shall be no discrimination on the basis of race, color, creed, religion, age, disability, sex, sexual orientation, marital status, national origin, or ancestry, in the hiring, firing, promoting, or demoting of any person engaged in the construction work.
2.7 Completion.
(a) When the Agency has determined that the obligations of the Developer under this Article 2 have been met and that Developer has completed construction of the Project in compliance with this Agreement, the Developer may request that the Agency issue a Certificate of Completion, which the Agency shall do within ten (10) days of such a request.
(b) If the Developer requests issuance of a Certificate of Completion but the Agency refuses, then the Agency shall provide the Developer with a written explanation of its refusal within thirty (30) days of the Developer's request. If and when the Developer has taken the specified measures or met the specified standards, and is not otherwise in violation under this agreement, the Developer shall be entitled to and the Agency shall issue the Certificate of Completion.
(c) The Certificate of Completion shall not be deemed a notice of completion under the California Civil Code, nor shall it constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a deed of trust securing money loaned to finance the Project.
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(d) Within 90 days after the Agency issues the
Certificate of Completion, Developer shall cause to be prepared and shall submit to the Agency for reasonable approval a cost certification (the "Cost Certification"), setting forth all Development Costs, certified by the Chief Financial Officer of Developer. In the event the actual total Development Costs (excluding land), as certified by Developer and approved by Agency, are less than $3,760,000 (the difference between $3,760,000 and the actual Development Costs being referred to herein as "Cost Savings"), the Cost Savings shall be allocated as follows: (i) the first $5,000 in Cost Savings, if any, shall be allocated to Developer; (ii) the balance of the Cost Savings, if any, shall be allocated in accordance with the following formula: fifty percent (50%) to Developer; twenty-five percent (25%) to Agency; and twenty-five percent (25%) to State.
2.8 Progress Reports.
Until such time as the Developer is entitled to issuance of a Certificate of Completion, the Developer shall provide the Agency with monthly progress reports regarding the status of the construction of the Project.
2.9 Construction Responsibilities.
(a) It shall be the responsibility of the Developer to
coordinate and schedule the work to be performed so that commencement and completion of construction will take place in accordance with this Agreement. The cost of developing the Project shall be borne by the Developer as described in this Agreement.
The Developer shall be responsible for obtaining and complying with any condition relating to any and all permits which may be required by any governmental agency having jurisdiction over the work to be performed.
(b) The Developer shall be solely responsible for all
aspects of the Developer's conduct in connection with the Project, including (but not limited to) the quality and suitability of the Construction Drawings, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review of inspection undertaken by the Agency with reference to the Project is solely for the purpose of determining whether the Developer is properly discharging its obligations to the Agency, and should not be relied upon by the Developer or by any third parties as a warranty or representation by the Agency as to the quality of the design or construction of the Project.
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2. 10 Mechanics Liens, Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Site or
the Project, or a stop notice is served on any lender or other third party in connection with the Project, then the Developer shall, within twenty (20) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the party entitled thereto a surety bond in sufficient form and amount, or provide other assurances satisfactory to the Agency that the claim of lien or stop notice will be paid or discharged.
(b) If the Developer fails to discharge any lien,
encumbrance, charge, or claim in the manner required in subsection (a) of this Section 2.10, then in addition to any other right or remedy, the Agency may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at the Developer's expense. Alternately, the Agency may require the Developer to immediately deposit with the Agency the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The Agency may use such deposit to satisfy any claim or lien that is adversely determined against the Developer. (c) The Developer shall file a valid notice of cessation or notice of completion upon cessation of construction on the Project for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims or liens against the Project. The Agency may (but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the Agency deems necessary or desirable to protect its interest in the Project.
ARTICLE 3 METHOD OF FINANCING
3.1 Project Budget
The anticipated Development Costs are set forth in the
Project Budget. Prior to the Close of Escrow, Developer may amend the Project Budget, by submitting changes to the Agency Executive Director for approval (which approval shall not be unreasonably withheld, provided that Developer identifies sources of funds to pay all Development Costs without increasing the amount of the Grant). In addition, from time-to-time, the Agency Executive Director may propose amendments to the Project Budget, by submitting changes to Developer for approval (which approval shall not be unreasonably withheld). Upon the approval of an amendment by both the Agency and Developer, the Project Budget shall be replaced by the approved revised Project Budget.
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3.2 Sources of Financing.
Developer intends to finance the Development Costs with a combination of the following sources of funds:
(a) Land Loan. The $1,500,000 purchase price will be
seller-financed by the Land Loan to be made by the State. To evidence the Land Loan, the Developer shall execute the Land Loan Note and the Land Loan Deed of Trust. All payments of the Land Loan Note will be deferred.
(b) Construction Loan. Sun Microsystems ("Sun") will
advance the Construction Loan in the amount of $2,760,000 for payment of Development Costs. To evidence the Construction Loan, Developer shall execute the Construction Loan Note, which Sun will assign to the State, to be secured by the Construction Loan Deed of Trust. The terms of the Construction Loan Note shall include four annual payments of $500,000 (i.e., the Grant payments, as described below, to be assigned to the State). When the Agency has disbursed the Grant in full, the outstanding balance of the Construction Loan Note and the Land Loan Note shall be forgiven in full by the State. (c) Grant. Subject to all of the terms and conditions
of this Agreement, including those set forth in Section 3.4, below, the Grant shall be disbursed as follows:
(1) Concurrently with Sun's disbursement of the
full amount of the Construction Loan into the
Construction Escrow for payment of Development
Costs, the Agency shall disburse a portion of the
Grant, in the amount of $500,000, into the
Construction Escrow for payment of Development
Costs;
(2) Following completion of construction, the
Agency will disburse $2,000,000, in four annual
payments of $500,000, to the State, to pay down the
Construction Loan.
(d) Without the express written consent of the Agency,
or as otherwise provided in this Agreement, Developer shall not place any liens or encumbrances, or permit any liens or encumbrances to be placed, on or against title to the Site, except for the Permitted Encumbrances, the Agreement Containing Covenants and the Performance Deed of Trust.
3.3 Obligation to Make the Grant.
(a) To carry out the proposed method of financing, as
described in Section 3. 2, above, the Agency agrees to make the Grant to Developer subject to the terms and conditions of this sc\fam\grant.3
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Agreement, and Developer agrees to accept the Grant for the uses and purposes set forth in this Agreement.
(b) The Agency's obligation to make the Grant is
specifically for the benefit of the Developer and the State.
Developer shall have the right, without further consent of the Agency, to assign to the State all of its right to $2,000,000 of the Grant and to receive all payments from the Agency pursuant to this Agreement; provided, however, that notwithstanding any other provision of this Agreement or any other document or instrument, the obligation of the Agency to the State pursuant to this Agreement shall be and is a nonrecourse obligation. In the event the Agency fails to make any portion of the Grant when and as due, the State's exclusive remedy shall be to foreclose on the Permitted Encumbrances. Neither the Agency, the City, nor any of their respective elected and appointed officials, agents, servants, employees, officers, directors, attorneys and consultants, nor any other party, shall have any personal liability to the State or to any other party for disbursement of the Grant. The sole recourse of the State shall be the exercise of its rights against the Site and the Project and any related security for the Land Loan and the Construction Loan.
3.4 Terms of the Grant
(a) The maximum amount of the Grant shall be $2,500,000. (b) The Agency shall disburse into the Construction
Escrow a portion of the Grant, equal to $500,000, but only upon the satisfaction of the following conditions precedent (which date shall be referred to as the "Date of Satisfaction of Grant Conditions"):
(1) The Developer shall have taken title to the
Site pursuant to the DDA;
(2) All conditions set forth in Section 2. 3 of this
Agreement shall have been satisfied;
(3) The closing of the Construction Loan shall be
completed, and Sun shall have disbursed the Construction Loan into the Construction Escrow for payment of Development Costs; (4) The Developer shall deliver to the Agency a
current Project Budget, demonstrating to the reasonable satisfaction of the Agency Executive Director that Developer continues to have sufficient sources of funds to pay all reasonably anticipated Development Costs. The Developer shall certify in writing to the Agency that the Project Budget is, to the best of Developer's knowledge, accurate as of the date of submission, and that the sources of financing listed in the Budget are projected to be sufficient to pay all Development Costs.
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(5) The Agency Executive Director shall determine
that Developer is in full compliance with the terms and conditions of this Agreement and all documents and instruments referred to herein or executed by Developer in furtherance of this Agreement. (c) The Construction Escrow shall disburse up to
$500, 000 in Grant funds for payment of Development Costs in accordance with appropriate disbursement instructions from the Developer, the State and the Agency. The Grant funds shall be the last funds used for payment of Development Costs; no Grant funds shall be disbursed by the Construction Escrow until the entire Construction Loan has been disbursed for payment of Development Costs. To carry out this subdivision (c), the Agency Executive Director and Developer may execute such escrow instructions or disbursement agreements with the State as they may deem necessary or appropriate.
(d) The remaining portion of the Grant shall be
disbursed by the Agency to the State in four equal annual payments each in the amount of $500,000 (subject to reduction, if any, in accordance with subdivision (d) of Section 2.7 hereof), commencing on the first anniversary of the Date of Satisfaction of Grant Conditions, or 30 days following approval by the Agency of the Cost Certification pursuant to subdivision (d) of Section 2.7 hereof, whichever is later. Upon receipt of the fourth such annual payment, the State shall cancel the Land Loan Note and Construction Loan Note, and forgive any balance remaining unpaid of the Land Loan and the Construction Loan, and shall reconvey the lien of the Permitted Encumbrances.
ARTICLE 4 REQUIREMENTS DURING AND AFTER CONSTRUCTION
4.1 Information.
The Developer shall promptly provide any information
reasonably requested by the Agency in connection with the Project.
4.2 Records.
The Developer shall maintain complete, accurate, and current records pertaining to the Project for a period of five (5) years after the creation of such records, and shall permit any duly authorized representative of the Agency to inspect and copy records, including records pertaining to income and household size of tenants of the Project, during regular business hours. Records must be kept accurate and current.
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4.3 Inspections.
The Developer shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Project by the Agency and by public authorities during regular business hours for the purposes of determining compliance with this Agreement.
4.4 Fees and Taxes.
During the period of ownership of the Project by the
Developer, the Developer shall be solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Project or portion thereof owned by the Developer, and shall pay such charges prior to delinquency. However, the Developer shall not be required to pay and discharge any such charge so long as (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the Agency, the Developer deposits with the Agency any funds or other forms of assurance that the Agency in good faith from time to time determines appropriate to protect the Agency from the consequences of the contest being unsuccessful.
4.5 Indemnification and Insurance
(a) In General. Developer agrees to, and shall,
indemnify and hold the Agency and the City and their agents, servants, employees, officers, directors, and consultants harmless from and against all liability, loss, damage, costs, or expenses (including attorneys' fees and court costs) arising from or as a result of the death of any person or any accident, injury, loss and damage whatsoever caused to any person or to the property of any person which shall occur on or adjacent to the Site or the Project and which shall be directly or indirectly caused by any acts done on the Site or the Project, except to the extent caused by Agency's negligence or willful misconduct, or any errors or omissions of the Developer and its agents, servants, employees and contractors. {b) Insurance. Prior to the Close of Escrow, Developer
shall furnish or cause to be furnished to the Agency duplicate originals or appropriate certificates of insurance policies in the amount of $2,000,000 combined single limits naming the Agency and the City as additional insureds covering claims against Developer including, but not limited to, personal injury and property damage insurance policies in the amount of at least $2,000,000. The Developer shall also furnish to the Agency proof of insurance coverage including a binder or policy of fire and hazard insurance with mortgagee's loss payable endorsement in favor of the Agency, the City and the State, with endorsements of extended coverage, vandalism, and malicious mischief; and a rent interruption endorsement. The insurance required by this Section 4.5 shall be sc\ fam\grant .3
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kept in force until the Grant has been disbursed in full. All binders or policies of insurance shall be issued by companies approved by the Agency in form and amount acceptable to the Agency, and shall provide, if obtainable, for not less than thirty (30) days' notice by certified mail to Agency prior to any cancellation, modification or reduction in coverage.
4.6 Transfers
(a) Following the issuance of the Certificate of
Completion by the Agency, Developer shall have the right to assign this Agreement and convey the Site and the Project to Emergency Housing Consortium, a California nonprofit public benefit corporation ("EHC") subject to and as provided in Section 701 of the DDA, or to another nonprofit public benefit corporation pursuant to Section 702 of the DDA. For purposes of this Agreement, EHC or such other nonprofit public benefit corporation shall be referred to as the "Permitted Transferee."
(b) Except as provided in subdivision (a) of this
Section 4.6, Developer shall not assign or attempt to assign this Agreement or any right herein, nor make any total or partial sale, transfer, conveyance or assignment of the whole or any part of the Site, the Project, or any portion thereof or interest therein (referred to hereinafter as a "Transfer"), without prior written approval of the Agency. Consent to one such transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. Agency may grant or deny such consent in its sole discretion and, if consent should be given, any such transfer shall be subject to this Section 4. 6, and any such transferee shall assume all obligations hereunder and agree to be bound by all provisions contained herein.
(c) Any such proposed transferee shall have the
qualifications and financial responsibility necessary and adequate as may be reasonably determined by the Agency, to fulfill the obligations undertaken in this Agreement, the Agreement Containing Covenants, the Performance Deed of Trust and the Environmental Indemnity (collectively referred to as the "Grant Documents") by the Developer. Any such proposed transferee and any Permitted Transferee, by instrument in writing satisfactory to the Agency, for itself and its successors and assigns, and for the benefit of the Agency shall expressly assume all of the obligations of the Developer under the Grant Documents and agree to be subject to all conditions and restrictions applicable to the Developer in the Grant Documents. There shall be submitted to the Agency for review all instruments and other legal documents proposed to effect any such transfer; and if approved by the Agency its approval shall be indicated to the Developer in writing.
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(d) In the absence of specific written agreement by the Agency, no unauthorized Transfer, or approval thereof by the Agency, shall be deemed to relieve the Developer or any other party from any obligations under the Grant Documents.
(e) In the event of a Transfer without the prior written consent of the Agency, the Agency shall have the right to foreclose on the Performance Deed of Trust.
(f) (i) As used herein, "Transfer" includes the sale,
agreement to sell, transfer or conveyance of the Site, the Project, or any portion thereof or interest therein, whether voluntary, involuntary, by operation of law or otherwise, the execution of any installment land sale contract or similar instrument affecting all or a portion of the Site or Project, or the lease of all or substantially all of the Site or Project, except as provided below. (ii) ''Transfer'' shall also include the transfer,
assignment, hypothecation or conveyance of legal or beneficial ownership of any interest in Developer or any conversion of Developer to an entity form other than that of Developer at the time of execution of this Agreement, except as provided in subdivision (b) of Section 1.7 hereof.
(iii) Notwithstanding paragraphs (i) and (ii),
"Transfer" shall not include a conveyance of a security interest in the Site and the Project to Sun and to the State pursuant to the Permitted Encumbrances, or the conveyance of title to the Site or Project in connection with a foreclosure or a deed in lieu of foreclosure, nor shall it include the leasing for occupancy of all or any part of the Project pursuant to this Agreement.
4.7 Right of Agency to Cure Defaults
In the event of a default or breach by the Developer of either of the Permitted Encumbrances, the Agency may cure the default prior to completion of any foreclosure. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing the default. The Agency shall also be entitled to a lien upon the Site and the Project (or any portion thereof) to the extent of such costs and disbursements. Any such lien shall be subordinate and subject to the Permitted Encumbrances.
ARTICLE 5 USE OF THE SITE
5.1 Uses
(a) The Developer covenants and agrees for itself, its
successors, its assigns and every successor in interest to the Site or any part thereof, that the Developer, its successors and assignees shall use the Site exclusively for the uses specified in sc\fam\grant .3
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the DDA, this Agreement and the Agreement Containing Covenants.
Without limiting the generality of the foregoing, Developer shall develop on the Site 33 2-bedroom units of multifamily rental housing, as provided in the Drawings, which will be rented exclusively, at an affordable rent, to Very Low Income households, for not less than 30 years following initial occupancy, as more particularly described in the Agreement Containing Covenants. (b) The Developer, such successors and such assigns
shall operate the Site and the Project in conformity with all applicable laws, including all applicable federal and state labor standards, maintain the Project on the Site, keep the Site and Project free from any accumulation of debris or waste materials, and maintain in a healthy condition any landscaping planted in accordance with the Drawings.
5.2 Management of the Site
(a) Prior to the Close of Escrow, Developer shall
prepare and submit to the Agency Executive Director or his designee for review and approval a management plan (the "Management Plan") for the operation of the Project. Approval of the Management Plan by the Agency Executive Director or designee shall be a condition precedent to the Close of Escrow.
(b) The Management Plan shall describe in reasonable
detail the Developer's proposed plans for managing and operating the Project. The Management Plan, including any amendments proposed by Developer, shall be subject to the approval of the Agency Executive Director or designee.
(c) For the term of the Agreement Containing Covenants, Developer, its successors and assigns, shall manage and operate the Project in accordance with the approved Management Plan, including any amendments approved from time to time by Developer and the Agency Executive Director.
(d) The Agreement Containing Covenants shall -contain
appropriate provisions implementing this Section 5.2.
5,3 Maintenance of the Site
(a) Prior to the Close of Escrow, Developer shall
prepare and submit to the Agency Executive Director or his designee for review and approval a program (the "Exterior Maintenance Program") for the maintenance of the exterior of the Project.
Approval of the Exterior Maintenance Program by the Agency Executive Director or designee shall be a condition precedent to the Close of Escrow.
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(b) The Exterior Maintenance Program shall describe in
reasonable detail the standards to be followed in maintaining the exterior of the improvements, including a schedule indicating the proposed frequency of each element of maintenance, and shall include, at a minimum, the following: periodic cleaning of the exterior of the improvements, including windows; removing graffiti; removing debris and waste materials and otherwise maintaining outdoor areas of the Site; performing inspections of all exterior features to determine whether repairs are required; conducting periodic protective treatments such as rust removal and caulking; conducting repairs to facades, roof, doors, windows and other exterior features; maintaining fencing and other security devices and systems; and periodic repainting. The Exterior Maintenance Program, including any amendments proposed by Developer, shall be subject to the approval of the Agency Executive Director or designee.
(c) For the term of the Agreement Containing Covenants, Developer shall maintain the exterior of the improvements in accordance with the approved Exterior Maintenance Program, including any amendments approved from time to time by Developer and the Agency Executive Director. In the event Developer fails to maintain the exterior of the improvements in accordance with the approved Exterior Maintenance Program, the Agency shall have the right, but not the obligation, to enter the Site, correct any violation, and hold the Developer responsible for the cost thereof, and such cost, until paid, shall constitute a lien on the Site. (d) The Agreement Containing Covenants shall contain
appropriate provisions implementing this Section 5.3.
5.4 Obligation to Refrain from Discrimination
There shall be no discrimination against or segregation of any person, or group of persons, on account of race, color, religion, national origin, ancestry, sex, or marital status in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall the Developer 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 of the Property.
5,5 Form of Nondiscrimination and Nonsegregation Clauses The Developer shall refrain from restricting the rental, sale or lease of the property on the basis of race, color, religion, ancestry, national origin, sex, or marital status of any person.
All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
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(a) In deeds: "The grantee herein covenants by and for
himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, ancestry, national origin, sex, or marital status in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or any person claiming under or through him, 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.
(b) In leases: "The lessee herein covenants by and for
himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, 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 account of race, color, religion, ancestry, national origin, sex, or marital status in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land herein leased nor shall the lessee himself, or any person claiming under or through him, 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."
(c) In contracts: "There shall be no discrimination
against or segregation of any person, or group of persons on account of race, color, religion, ancestry, national origin, sex, or marital status in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of
discrimination or segregation with reference to the lessees, subtenants, sublessees or vendees of the land."
5.6 Effect and Duration of Covenants
(a) The Developer has, concurrently with the execution
of this Agreement, executed in recordable form the Agreement Containing Covenants, subjecting and burdening the Site and Project with the covenants set forth in Sections 5.1 through 5.5, inclusive, as covenants running with the land, which the Agency is authorized to record against the Site and Project concurrently with the Close of Escrow.
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(b) The covenants contained in the Agreement Containing Covenants shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City and any successor in interest to the Site and the Project or any part thereof.
(c) All conditions, covenants and restrictions contained in this Article 5 and the Agreement Containing Covenants shall be covenants running with the land, and shall, in any event, and without regard to technical classification or designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by the Agency, its successors and assigns, and the City and its successors and assigns, against the Developer, its successors and assigns, to or of the Site, the Project or any portion thereof or any interest therein.
(d) Except as set forth in the following sentence (and
subject to the rights of the beneficiaries of the Permitted Encumbrances), every covenant and condition and restriction contained in this Article 5 and the Agreement Containing Covenants shall remain in effect for the longest feasible time, but for not less than thirty (30) years. The covenants against discrimination set forth in Sections 5. 4 and 5. 5 shall remain in effect in perpetuity.
5.7 Effect of Violation of the Terms and Provisions of this ( Agreement
The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and the covenants herein, both for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, for whose benefit this Agreement and the covenants running with the land have been provided. The Agreement and the covenants shall run in favor of the Agency without regard to whether the Agency has been, remains, or is an owner of any land or interest therein in the Site, the Project, or in the development area. In addition to any rights it may have pursuant to the Agreement Containing Covenants and the Performance Deed of Trust, the Agency shall have the right if the covenants are breached, after the expiration of applicable cure periods, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it is entitled.
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ARTICLE 6 DEFAULTS, REMEDIES AND TERMINATION
6.1 Defaults - General
(a) Subject to Force Majeure delays as set forth in
Section 7.5, and subject to the further provisions of this Section
6. 1, failure or delay by the Developer to perform any term or provision of this Agreement constitutes a default.
(b) The Agency shall give written notice of default to
the Developer, specifying the default complained of by the Agency.
Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.
(c) Any failures or delays by the Agency in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by the Agency in asserting any of its rights and remedies shall not deprive the Agency of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies.
(d) If a monetary event of default occurs, prior to
exercising any remedies hereunder, Agency shall give Developer written notice of such default. Developer shall have seven (7) days after such notice is given within which to cure the default prior to exercise of remedies by Agency.
(e) If a non-monetary event of default occurs, prior to exercising any remedies hereunder, Agency shall give Developer notice of such default. If the default is reasonably capable of being cured within thirty (30) days, Developer shall have such period to effect a cure prior to exercise of remedies by the Agency under this Agreement. If the default is such that it is not reasonably capable of being cured within thirty (30) days, and Developer (i) initiates corrective action within said period, and (ii) diligently and in good faith works to effect a cure as soon as possible, then Developer shall have such additional time as is reasonably necessary to cure the default prior to exercise of any remedies by Agency. In no event shall Agency be precluded from exercising remedies if necessary to avoid a foreclosure, or if the default is not cured within ninety (90) days after the notice of default is first given.
6.2 Institution of Legal Actions
In addition to any other rights or remedies, either party may institute legal actions to cure, correct, or remedy any default, to recover damages for any default, or to obtain any other remedy, including specific performance, consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Santa Clara, State of California, in any sc\fam\grant.3
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other appropriate court in that County, or in the United States District Court for the Northern District of California.
6.3 Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
6.4 Acceptance of Service of Process
(a) In the event that any legal action is commenced by
the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or Chairman of the Agency, or in such other manner as may be provided by law.
(b) In the event that any legal action is commenced by
the Agency against the Developer, service of process on the Developer shall be made by personal service upon an officer of the Developer, or in such manner as may be provided by law, and shall be valid whether made within or without the State of California.
6.5 Rights and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
6.6 Damages
If either party defaults with regard to any of the provisions of this Agreement, and the default is not cured after the applicable notice and cure period as set forth in Section 6.1, the defaulting party shall be liable to the other party for damages caused by such default.
6.7 Specific Performance
If either party defaults under any of the provisions of this Agreement, and the default is not cured after the applicable notice and cure period as set forth in Section 6.1, the nondefaulting party, at its option, may institute an action for specific performance of the terms of this Agreement.
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6.8 Termination
(a) The Agency, at its option, may terminate this
Agreement prior to the Close of Escrow in the event of any material default that the Developer fails to cure within the respective time set forth in Section 6.1.
(b) Following the Close of Escrow, in the event of any
material default that the Developer fails to cure within the respective time set forth in Section 6.1, the Agency shall not terminate this Agreement except in connection with a foreclosure of the Performance Deed of Trust.
6.9 Notice of Default to the State
Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer, the Agency shall at the same time deliver a copy of such notice or demand to the State. The State shall (insofar as the rights of the Agency are concerned) have the right, at its option, within ninety (90) days after receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the security interest debt and the lien on its security interest.
ARTICLE 7 GENERAL PROVISIONS
7.1 Notices, Demands, and Communications Between the Parties All notices and demands which may or are to be required or permitted to be given by either party to the other hereunder shall be in writing. All notices and demands by Agency to Developer shall be personally served or sent by United States Mail, postage prepaid, and addressed to Developer at the address set forth in Section 1.6, or to such other place as Developer may from time to time designate in a notice to Agency. All notices and demands by Developer to Agency shall be personally served or sent by United States Mail, postage prepaid, and addressed to Agency at the address set forth in Section 1.5, or to such other person or place as Agency may from time to time designate in a notice to Developer. All notices shall be deemed to be served upon personal delivery or two (2) days after mailing in the manner required by this Section.
7.2 Conflict of Interests
No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or sc\ f am\grant. 3
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association in which he or she is directly or indirectly interested.
7.3 Warranty Against Payment of Consideration for Agreement Except as provided in this Agreement, the Developer warrants that it has not paid or given, and will not pay or give, any person any money or other consideration for obtaining this Agreement.
7.4 Nonliability of Agency Officials and Employees
No member, official, or employee of the Agency shall be personally liable to the Developer or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement.
7.5 Force Majeure Delay: Extension of Time of Performance Notwithstanding specific provisions of this Agreement,
performance of non-monetary obligations by either party shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation including litigation challenging the validity of this transaction or any element thereof; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, or suppliers; acts of the other party; acts or failure to act of the City or any other public or governmental agency or entity (except that acts or failure to act of the Agency shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by the Agency and Developer. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until the requesting party delivers to Agency written notice describing the event, its cause, when and how such party obtained knowledge, the date the event commenced, and the estimated delay resulting therefrom. The requesting party shall deliver such written notice within fifteen (15) days after it obtains actual knowledge of the event.
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7.6 Inspection of Books and Records
The Agency or its designee has the right at all reasonable times, upon reasonable notice, to inspect the books, records, and/or other documents of the Developer pertaining to the Site and/or the Project as pertinent to the purposes of this Agreement.
7.7 Approvals
Approvals required of the Agency or the Developer shall not be unreasonably withheld and approval or disapproval shall be given within the time set forth in this Agreement or, if no time is given, within a reasonable time.
7.8 Authorized Representative of Agency
Unless otherwise specified or the context requires otherwise, all references in this Agreement and its attachments to the Agency shall mean the Executive Director of the Agency or any officer or employee of the Agency to whom the Executive Director or the Board of the Agency delegates authority to perform, carry out and/or enforce this Agreement.
7,9 Waivers
The waiver by Agency of any term, covenant, or condition herein contained shall not be a waiver of such term, covenant, or condition on any subsequent breach.
7.10 Time of the Essence
Time is of the essence of this Agreement and each and all of its provisions in which performance is a factor.
7.11 Attorneys Fees and Costs
If any action or proceeding is brought by either party against the other under this Agreement, whether for interpretation, enforcement or otherwise, the prevailing party shall be entitled to recover all costs and expenses, including the fees of its attorney and any expert witnesses in such action or proceeding. This provision shall also apply to any postjudgment action by either party, including without limitation efforts to enforce a judgment.
7.12 Severability
Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect.
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7.13 Non-exclusivity
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
7.14 Relationship of the Parties
Nothing contained in this Agreement shall be deemed or
construed as creating a partnership, joint venture, or any other relationship between the parties hereto other than Grantor and Grantee according to the provisions contained herein, or cause Agency to be responsible in any way for the debts or obligations of Developer, or any other party.
7.15 Complete Agreement
This Agreement, including any document or instrument
incorporated herein by reference, contains a complete and final expression of the agreement between Agency and Developer, and there are no promises, representations, agreements, warranties, or inducements either express or implied other than as are set forth in this Agreement. Any and all previous discussions or agreements between Agency and Developer with respect to the premises, whether oral or written, are superseded by this Agreement.
7.16 Terminology
When the context so requires when used in this Agreement, the masculine gender shall be deemed to include the feminine and neuter gender and the neuter gender shall be deemed to include the masculine and feminine gender. When the context to requires when used in this Agreement, the singular shall be deemed to include the plural. The paragraph and section headings have been used for convenience only, and shall not be used in the interpretation hereof.
7.17 Necessity for a Writing
No amendment, change, or addition to, or waiver of termination of, this Agreement or any part hereof shall be valid unless in writing and signed by both Agency and Developer.
7.18 Third Party Beneficiary
The parties to this Agreement acknowledge and agree that the provisions of this Agreement are for the sole benefit of Agency and Developer and the State, and not for the benefit, directly or indirectly, of any other person or entity, except as otherwise expressly provided herein.
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7.19 Authority to Sign
Developer hereby represents that the person executing this Agreement on behalf of Developer has full authority to do so and to bind Developer to perform pursuant to the terms and conditions of this Agreement.
7.20 Incorporation by Reference
Each of the exhibits attached hereto is incorporated herein by this reference.
7.21 Interpretation of Agreement
This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. In addition, each party has been given the opportunity to consult with experienced and knowledgeable legal counsel. Accordingly, any rule of law (including Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose and intent of the parties to this Agreement.
ARTICLE 8 EXECUTION OF AGREEMENT; TIME FOR ACCEPTANCE
This Agreement shall be executed in five duplicate originals, each of which is deemed to be an original. This Agreement consists of twenty-eight (28) pages and six (6) attachments which constitute the entire understanding and agreement of the parties.
This Agreement does not take effect until executed by the Agency. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within thirty (30) days after the date of signature by the Developer, or this Agreement may be terminated by the Developer on written notice to the Agency.
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Upon the execution of this Agreement by both parties, the date of this Agreement shall be the date-on which this Agreement was executed by the Agency.
Date: ~ /3, /'!ff
ATTEST:
By: a -c'. .drt;2u2&
~- Boccig ne
- Secretary
APPROVED AS TO FORM:
MICHAEL R. DOWNEY,
Agency General Counsel
KANE, BALLMER & BERKMAN
Agency ecial Counsel
By:
Date: _______ _
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THE REDEVELOPMENT AGENCY
OF THE CITY OF SANTA CLARA, CALIFORNIA
By_~~~'fi"'---_½':4-J~';':'-"C""lJ\'L"-'--""'t}-''----- 0 Exe ctor
MID-PENINSULA HOUSING
California nonprofit
corporation
-28-
COALITION, a
public benefit