HomeMy WebLinkAboutReso 222-07 Predevelop Loan Eden Housing
RESOl.UTION NO 222-07
A RESOLUTJ[ON OF 'fHE CITY COUNC][l.
OF 'fHE Crry OF DUBl.J[N
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APPROVING A PREDEVEJLOPMEN'f l.OAN TO EDEN HOUSING, INC
WHEREAS, on July 17, 2007, the City Council of the City of DublIn ("City Councll") approved
execution of a DisposItion and Development Agreement ("DDA") "'lth the HOUSIng Authonty of the
County of Alameda ("HACA"), the Housmg Authonty of the CIty of DublIn ('Authonty"), SCS
Development Corporation, dba CItatIOn Central Homes ("CItatIOn"), and Eden Housmg, Inc ('Eden"),
and
WHEREAS, pursuant to the terms of the DDA, (1) Eden wIll acquIre a portion of real property
(the' Property') currently owned by the Authonty and commonly known as Arroyo Vista, (n) Eden wIll
construct on itS portIOn of the Property affordable multi-famIly and semor rental housmg WIth related
Improvements (the "ProJect"), and the (m) the City will proVide a loan to Eden In the sum of One Mllhon
FIve Hundred Thousand Dollars ($1,500,000) to assist III finanCIng the constructIOn of the Project (the
"ConstructIOn Loan"), and
WHEREAS, Eden has requested, and City has agreed, to proVlde an advance on the ConstructIOn
Loan In the amount of $325,000 l "Predevelopment Loan") for the purpose of financmg predevelopment
actIVIties for the Project, and
WHERlEAS, Eden and CIty Staff have negotiated the terms and condItions of the predevelopment
loan documents, which mclude a predevelopment loan agreement ("Loan Agreement") attached hereto as
Attachmellllt 1, a promISSOry note m the amount of the Predevelopment Loan ('Note") attached hereto as
Attachmelllt 2, and an ASSignment of Agreements Plans and SpecificatIOns ("ASSIgnment
Agreement")attached hereto as Artadnment 3, whIch proVIdes the City With a secunty Interest In the
plans, speCIficatIons and studies financed by the Predevelopment Loan
NOW, 'fHEREFORE,BE rr RESOl.VED 'fHA'f the City CouncIl of the CIty of Dubhn, does
hereby approve a predevelopment loan to Eden HOUSIng, Inc III the amount of up to $325,000 for
predevelopment expenses for the Project
BE I'f :!FUR'fHER RESOLVED THAT, the City Council approves the Loan Agreement, the
Note, and the ASSignment Agreement and authonzes and dIrects the CIty Manager to execute such
documents substantially In the form attached hereto and to undertake such further actIOn as may be
necessary and deSirable to carry out the mtent of thIS resolutIOn
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PASSED, APPROVED AND ADOPTED thIS 18th day of December, 2007
AYES COlllIb.cllmember HnRdeD:l1bnnd, Oll'avetz, Sbnntn, SchoDz, and MayoII' l.ockhart
NOES None
ABSENT None
AJBSTAnN None
ATTEST
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PREDEVELOPMENT LOAN AGREEMENT
This Predevelopment Loan Agreement (this "Agreement") is entered into effective
as of ,2007 ("Effective Date") by and between the City of Dublin, a
municipal corporation (the "City") and Eden Housing, Inc., a California nonprofit public
benefit corporation (the "Borrower"). City and Borrower are hereinafter collectively
referred to as the "Parties."
WHEREAS, the City and Borrower, together with the Housing Authority of the
City of Dublin ("Authority"), the Housing Authority of the County of Alameda ("HACA")
and SCS Development Corporation, dba Citation Central Homes ("Citation") have
executed that certain Disposition and Development Agreement ("DDA") dated as of July
25, 2007 pursuant to which Borrower (i) will acquire a portion of the real property known
as Alameda County Assessor's Parcel Number 941-0007-001-07 (the "Property")
currently owned by the Authority; and (ii) will construct on its portion of the Property
affordable multi-family and senior rental housing with related improvements (the
"Project"). Capitalized terms used but not defined herein shall have the meaning
ascribed to such terms in the DDA.
WHEREAS, pursuant to the DDA, the City agreed to provide a loan to Borrower
in the sum of One Million Five Hundred Thousand Dollars ($1,500,000) to assist in
financing the construction of the Project (the "Construction Loan").
WHEREAS, Borrower has requested, and the City has agreed to provide, an
advance on the Construction Loan (the "Predevelopment Loan") pursuant to the terms
and conditions set forth herein for the purpose of providing financing for
predevelopment activities which are necessary for environmental approval of the
proposed development -of the Property and to obtain HUD approval of the disposition
application (the "Disposition Application"), as more particularly described in the
predevelopment budget attached hereto as Exhibit A (the "Predevelopment Budgef') ;
WHEREAS, the proceeds of the Predevelopment Loan ("Predevelopment Loan
Proceeds") will be disbursed from the City's Inclusionary Zoning In-Lieu Fee Fund (the
"Fund") established pursuant to Section 8.68.080 of the Dublin Municipal Code, and the
use of the Predevelopment Loan Proceeds pursuant to this Agreement will serve the
purposes of the Fund by increasing the City's supply of affordable low-income housing;
and
WHEREAS, concurrently herewith Borrower shall execute (i) a promissory note
in the amount of the Predevelopment Loan, and (ii) an assignment agreement (the
"Assignment Agreemenf') which shall provide City with a security interest in the plans,
specifications and studies financed by the Predevelopment Loan.
NOW THEREFORE, in consideration of their mutual undertakings and other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
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Attachment 1 to Resolution
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the Parties agree as follows.
1. THE PREDEVELOPMENT LOAN AND DISBURSEMENT OF
PREDEVELOPMENT LOAN PROCEEDS
1.1 Predevelopment Loan and Note. City agrees to loan to Borrower, and Borrower
agrees to borrow from and repay to City, a sum in the maximum principal amount of
Three Hundred Twenty-Five Thousand Dollars ($325,000) (the "Predevelopment
Loan") upon the terms and conditions and for the purposes set forth herein. The
Predevelopment Loan shall be evidenced by a promissory note dated as of the
Effective Date and executed by Borrower substantially in the form, Attachment 2 to the
Resolution (the "Promissory Note"). Provided that Borrower has complied with all
conditions set forth in Section 1.6, the Predevelopment Loan Proceeds shall be
disbursed in accordance with Section 1.5 hereof.
The Parties acknowledge and agree that (i) Borrower's predevelopment costs for the
environmental review and obtaining HUD approval of the Disposition Application may
exceed the aggregate of the Predevelopment Loan and Borrower's share of the
$175,000 deposit in the cost recovery account established with City pursuant to Section
2.10 of the DDA (the "Initial Deposit"); (ii) the environmental review and HUD approval
of the Disposition Application may not be obtained by the time the City has disbursed all
of the Predevelopment Loan Proceeds to Borrower; (iii) City shall have no obligation to
disburse any funds in excess of the Predevelopment Loan; and (iv) any funds in excess
of the Predevelopment Loan and the Initial Deposit necessary to complete the
environmental review and to obtain HUD approval of the Disposition Application shall
be the sole responsibility of Borrower as and to the extent set forth in the DDA.
1.2 Interest: Maturity Date. Provided that Borrower is not in default under the terms
of this Agreement, no interest shall accrue on the Predevelopment Loan. The
outstanding principal balance of the Predevelopment Loan and any other sums due
under the Promissory Note shall be payable in full on the third (3rd) anniversary of the
Predevelopment Loan origination date ("Maturity Date") unless the term of the
Predevelopment Loan is extended by mutual written agreement of the Parties or the
Predevelopment Loan is forgiven pursuant to the terms hereof; provided however, the
Parties agree that if the City disburses the Construction Loan, or a portion thereof, prior
to the Maturity Date, the outstanding balance of the Predevelopment Loan shall be
repaid with such financing on the date such financing is provided.
1.3 Security for the Loan. The Promissory Note shall be secured by Borrower's
assignment to the City of Borrower's rights to any and all architectural contracts, plans,
specifications, reports, and studies relating to the Property or the Project which have
been financed with Predevelopment Loan Proceeds. Borrower shall execute the
Assignment Agreement substantially in the form, Attachment 3 to the Resolution.
Upon Borrower's acquisition of title to a portion of the Property for the Project, the
Promissory Note shall be secured by a deed of trust (the "Deed of Trust") executed by
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Borrower in favor of the City as beneficiary and recorded against Borrower's portion of
the Property. The Promissory Note shall provide that upon recordation of the Deed of
Trust, the Promissory Note shall be nonrecourse.
1.4 Use of Predevelopment Loan Proceeds. The Predevelopment Loan Proceeds
shall be used solely and exclusively for predevelopment costs for the Project as set
forth in the Predevelopment Budget and such other costs related to the Project as the
City may approve in writing. Funds for item (1) of the Predevelopment Budget shall be
credited against Borrower's obligation to pay for (i) all costs incurred by City, HACA and
Authority in connection with environmental review pursuant to Section 2.10 of the DDA
and (ii) City's and Authority's Transactional Costs (as such term is defined in the DDA)
pursuant to Section 2.11 of the DDA. Funds for item (2) of the Predevelopment Budget
shall be disbursed to Borrower on a cost reimbursement basis in accordance with
Section 1.5.
1.5 Disbursement of Proceeds. Upon Borrower's satisfaction of the conditions set
forth in Section 1.6, provided that Borrower has provided City with a written requisition
specifying the amount and use of the requested Predevelopment Loan Proceeds
accompanied by copies of third-party invoices for services rendered in connection with
the Project, and such other documentation as City may reasonably require, the City
shall disburse the Predevelopment Loan Proceeds to Borrower for Borrower's
predevelopment costs in the amounts and for the items set forth in the Predevelopment
Budget. Notwithstanding the preceding sentence, funds for item (1) of the
Predevelopment Budget shall be credited against Borrower's obligation to pay for (i) all
costs incurred by City, HACA and Authority in connection with environmental review
pursuant to Section 2.10 of the DDA, and (ii) City's and Authority's Transactional Costs
pursuant to Section 2.11 of the DDA.
1.6 Conditions Precedent to Disbursement of Funds.
(a) City's obligation to disburse the Predevelopment Loan Proceeds is
conditioned upon satisfaction of all of the following conditions:
(i) Borrower's execution and delivery to the City of this Agreement, the
Promissory Note, and the Assignment Agreement;
(ii) Reserved.
(iii) Borrower's delivery to the City of evidence of insurance coverage in
the form and in such amounts as may be reasonably required by City; and
(iv) Borrower's delivery to City of each of the following: (i) certificate of
good standing, certified by the Secretary of State indicating that Borrower is properly
organized and authorized to do business in the State of California; (ii) a certified
resolution indicating that Borrower has authorized this transaction and that the persons
executing this Agreement, the Promissory Note, and the Assignment Agreement on
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behalf of Borrower have been duly authorized to do so; and (iii) certified copies of
Borrower's articles of incorporation, bylaws, and I.R.S. tax-exemption determination
letter.
(b) Except as specified in Paraaraph 1.7 (b), the City shall have no obligation to
disburse any portion of the Predevelopment Loan Proceeds to Borrower following:
(i) termination of this Agreement;
(ii) the failure of any of Borrower's representations and warranties set
forth in this Agreement to be true and correct in all material
respects; or
(iii) the occurrence of an Event of Default under this Agreement, the
Promissory Note, the Assignment Agreement or the DDA.
1.7 Termination of Aareement.
(a) Termination bv Borrower. Provided that Borrower is not in default
under this Agreement, the Promissory Note, the Assignment Agreement, or the DDA,
Borrower may terminate this Agreement for any of the following reasons by providing
written notice of such termination to City:
(i) Despite Borrower's commercially reasonable efforts, the
development contingencies set forth in Section 15.1 of the DDA are not
performed by the time required for such performance and the parties to
the DDA are unable or unwilling to agree upon extensions for such
performance; or
(ii) An action or threatened action against the City, the
Authority, and/or HACA prevents the City, Authority and/or HACA, within
the timeframes set forth in the DDA, from performing their obligations
under the DDA or proceeding with actions necessary for the transfer of
the Property to Borrower; or
(iii) Borrower does not receive all governmental approvals
(including, without limitation, land use approvals) required for development
of the Property or construction of the Project, despite Borrower's
commercially reasonable efforts to obtain such approvals; or
(iv) Borrower determines, in its commercially reasonable
discretion, that any (i) remediation work with respect to hazardous
materials; or (ii) construction costs relating to the physical condition of the
Property or to the proposed or required improvements thereon are so
expensive or burdensome as to make the Project, or a required part
thereof, financially infeasible; or
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(v) Borrower does not receive commitments for all financing
necessary for the development, construction and operation of the Project,
despite Borrower's commercially reasonable efforts to obtain such
financing.
(b) Reimbursement. If this Agreement is terminated (i) by Borrower
pursuant to paragraph (a) above, (ii) by mutual agreement of the Parties as a result of
any pending or threatened litigation against the City, the Authority and/or HACA which
may adversely affect Borrower's and City's ability to perform under this Agreement and
the DDA, or (iii) by mutual agreement of the Parties for any other reason, City shall
reimburse Borrower for the following costs in an aggregate amount not to exceed the
undisbursed balance of the Predevelopment Loan on the date of termination:
(i) Predevelopment costs incurred by Borrower prior to the date
of termination of this Agreement provided that (1) such costs
and fees are identified in the Predevelopment Budget or
have otherwise been approved by City in writing, and (2)
Borrower has provided City with a written requisition
specifying the amount and use of the requested
Predevelopment Loan Proceeds accompanied by copies of
third-party invoices for services rendered in connection with
the Project, and such other documentation as City may
reasonably require.
(ii) The unspent portion of Borrower's share of the Initial
Deposit as of October 15, 2007. (The Parties agree that
such amount is equal to $64,000 as indicated in item (3) of
the Predevelopment Budget).
(c) Foroiveness of the Predevelopment Loan. If this Agreement is
terminated: (i) by Borrower pursuant to paragraph (a) above, (ii) by mutual agreement
of the Parties as a result of any pending or threatened litigation against the City, the
Authority and/or HACA which may adversely affect Borrower's, City's, Authority's and/or
HACA's ability to perform under this Agreement and/or the DDA, or (iii) by mutual
agreement of the Parties for any other reason, City shall forgive the outstanding
balance of the Predevelopment Loan (including any amounts reimbursed to Borrower
pursuant to paragraph (b) above) upon Borrower's delivery of all architectural contracts,
plans. specifications. reports, and studies to which City is entitled pursuant to the
Assignment Agreement. Upon delivery of such documents, City shall deliver to
Borrower the original Promissory Note marked "Cancelled" and this Agreement shall be
terminated; provided however, Borrower's obligation to indemnify City pursuant to
Section 3.2 of this Agreement shall survive termination of this Agreement.
Notwithstanding the foregoing, the City shall have no obligation to forgive
Borrower's obligation to repay the Predevelopment Loan and cancel the Promissory
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Note if, after the applicable notice and cure period, the City has declared Borrower in
default under this Agreement or the DDA and such default remains uncured at the time
of Borrower's request for forgiveness of the Predevelopment Loan.
2. USE RESTRICTIONS
2.1. Non-Discrimination. 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 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 Project or the Property, nor shall Borrower or
any person claiming under or through Borrower establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in
the Project.
2.2. Mandatory Lanauaae in All Subseauent Deeds, Leases and Contracts. All
deeds, leases or contracts made or entered into by Borrower, its successors or assigns,
as to any portion of the Property or the Project shall contain therein the following
language:
(a) In Deeds:
"Grantee herein covenants by and for itself, its successors and assigns that
there shall be no discrimination against or segregation of a person or of a group
of persons on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the Government Code in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the property herein conveyed
nor shall the grantee or any person claiming under or through the grantee
establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sub lessees or vendees in the property herein conveyed.
The foregoing covenant shall run with the land."
(b) In Leases:
"The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns and all persons claiming under the lessee or
through the lessee that this lease is made subject to the condition that there shall
be no discrimination against or segregation of any person or of a group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955
of the Government Code, as those bases are defined in Sections 12926,
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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 or any person claiming under or through the lessee establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants,
lessees, 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 any basis listed in subdivision (a) or (d) of Section 12955 of
the Government Code, as those bases are defined in Sections 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section
12955.2 of the Government Code in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the property nor shall the transferee or any person
claiming under or through the transferee establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of
the land,"
3. ADDITIONAL COVENANTS, REPRESENTATIONS AND WARRANTIES OF
BORROWER
3.1 Representations of Borrower. Borrower represents' and warrants to the City as
follows:
a. Oraanization of the Borrower: Tax-exempt Status, Borrower is a duly
organized nonprofit public benefit corporation, validly existing and in good standing
under the laws of the State of California. Borrower has all requisite power and authority
in the State of California to purchase the Property, to develop, own and operate the
Project, to carry on its business as now conducted, and to execute, deliver and perform
its obligations under this Agreement, the Promissory Note, and the Assignment
Agreement. Borrower has received a determination from the Internal Revenue Service
that it is exempt from federal tax under Section 501 (c)(3) of the Internal Revenue Code
of 1986 as amended and such determination is in full force and effect as of the
Effective Date.
b. Authorization of the Predevelooment Loan: No Violation. The execution,
delivery and performance of this Agreement, the Promissory Note, and the Assignment
Agreement have been duly authorized by Borrower, and this Agreement, the
Promissory Note and the Assignment Agreement, when duly executed and delivered
will constitute the valid and binding obligations of Borrower enforceable in accordance
with their respective terms. Borrower's execution of this Agreement, the Promissory
Note and the Assignment Agreement and performance thereunder will not result in a
breach of or constitute a default under any agreement, indenture or other instrument to
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which Borrower is a party or by which Borrower may be bound.
c. Litiaation. Except for that action filed by Arroyo Vista Tenants
Association, et aI., in the Superior Court of California, County of Alameda, Case No.
RG07351 015, there are no pending or threatened actions or proceedings before any
court or administrative agency which may adversely affect the financial condition or
operation of Borrower or its ability to carry out the obligations of Borrower under this
Agreement, the Promissory Note, the Assignment Agreement or the DDA. Borrower is
not the subject of an action under federal or state Bankruptcy Law (as defined below).
3.2 Indemnification. Borrower shall indemnify, defend and hold the City, its elected
and appointed officials, employees, contractors and agents (collectively
"Indemnitees") harmless from and against any and all demands, claims, suits, costs
(including reasonable attorneys' fees), losses, damage, causes of action, fines,
judgments, penalties, deficiencies, or liabilities of any kind (collectively "Claims")
arising directly or indirectly in any manner in connection with or resulting from (a) any
and all predevelopment, development or construction activities conducted in
connection with the Property or the Project, including without limitation, site
investigations conducted by or for Borrower, (b) any failure of any of Borrower's
representations or warranties set forth in this Agreement, or made by Borrower in
connection with the execution and delivery of this Agreement or in any certificate
furnished pursuant hereto, or in connection with any request for disbursement of
Predevelopment Loan Proceeds to be correct in all material respects, (c) any Claim,
whether meritorious or not, brought or asserted against any Indemnitee which relates
to or arises in connection with the Predevelopment Loan, the Promissory Note, the
Assignment Agreement, or any transaction contemplated thereby, or the relationship
between Borrower and City. Borrower's obligations under this Section shall survive the
making and repayment of the Predevelopment Loan and the expiration or termination
of this Agreement. Borrower's indemnity obligations shall not apply to any Claims
arising as a result of the willful misconduct or gross negligence of the City, its officers,
employees or agents. This Section is subject to, and shall not modify the relative rights
and obligations of the parties, set forth in Section 3.2 (f) of the DDA.
3.3 Books and Records. The City shall have the right, during business hours and
after reasonable notice to Borrower, to inspect and copy Borrower's books and
records with respect to the Property, the Project and the Predevelopment Loan.
3.4 Other Documents. Upon the City's reasonable request, Borrower shall deliver to
the City a copy of documents related to the Project, including without limitation,
construction contracts, consulting agreements, architects' agreements, loan and
financing documents, studies, reports, management plans, and property management
agreements.
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4. DEFAULT AND REMEDIES
4.1 Events of Default. The occurrence of anyone or more of the following events
shall constitute an event of default hereunder ("Event of Default'):
(a) Borrower fails to pay when due the principal payable under the
Promissory Note, and such failure continues for ten (10) days after City notifies
Borrower thereof in writing.
(b) An Event of Default is declared under the DDA, the Promissory
Note or the Assignment Agreement, and such failure continues after expiration of
the applicable notice and cure periods set forth in such documents.
(c) Any of Borrower's representations or warranties contained in this
Agreement, or made by Borrower in connection with the execution and'delivery
of this Agreement or in any certificate furnished pursuant hereto, or in connection
with any request for disbursement of Predevelopment Loan Proceeds shall prove
to have been incorrect when made in any material respect.
(d) Pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of debtors
("Bankruptcy Law"), Borrower (i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against Borrower in an involuntary
case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator
or similar official for Borrower; (iv) makes an assignment for the benefit of its
creditors; or (v) admits in writing its inability to pay its debts as they become due.
(e) A court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that (i) is for relief against Borrower in an involuntary case,
(ii) appoints a trustee, receiver, assignee, liquidator or similar official for Borrower
or substantially all of such entity's assets, (iii) orders the liquidation of Borrower,
or (iv) issues or levies a judgment, writ, warrant of attachment or similar process
against the Property or the Project, and in each case the order or decree is not
released, vacated, dismissed or fully bonded within 60 days after its issuance.
(f) Borrower fails to maintain insurance as required pursuant to this
Agreement, and Borrower fails to cure such default within 10 days.
(g) Borrower fails to use Predevelopment Loan Proceeds in
accordance with this Agreement or fails to use Predevelopment Loan Proceeds
in accordance with Borrower's request for disbursement.
(h) Borrower defaults in the performance of any term, provision,
covenant or agreement contained in this Agreement other than an obligation
enumerated in this Section 4.1, and unless such a shorter cure period is
specified for such default, the default continues for ten (10) days in the event of
a monetary default or thirty (30) days in the event of a nonmonetary default after
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the date upon which City shall have given written notice of the default to
Borrower, provided that in the case of a nonmonetary default that is not
susceptible of cure within thirty (30) days, an Event of Default shall not arise
hereunder if Borrower commences to cure the default within thirty (30) days and
thereafter prosecutes the curing of such default to completion with due diligence
and in good faith, but in no event longer than 120 days from the receipt of notice
of default.
4.2 Remedies. Upon the occurrence of an Event of Default, the City shall have the
following rights, in addition to any other rights and remedies provided by law:
(a) The City may declare the entire outstanding principal balance of the
Predevelopment Loan immediately due and payable;
(b) The City may exercise any and all rights and remedies granted to the
City pursuant to the Assignment Agreement;
(c) The City may seek an order of specific performance; and
(d) The City may terminate this Agreement.
Each of the remedies provided herein is cumulative and not exclusive of, and shall not
prejudice any other remedy provided herein, in the Promissory Note or the Assignment
Agreement. The City may exercise any rights and remedies available under applicable
law, in addition to, and not in lieu of, any rights and remedies expressly granted in this
Ag reement.
4.3 No Waiver. No failure or delay by City at any time to require performance by
Borrower of any provision of this Agreement or to exercise any right, power or remedy
hereunder shall be construed as a waiver of any other provision or any succeeding
breach of the same or any other provision hereof. The failure of City to insist upon the
strict performance of any provision of this Agreement, or to exercise any election
contained herein shall not be construed as a waiver or relinquishment for the future of
such provision or election nor shall it constitute a waiver of the City's right to assert any
future remedy provided for in this Agreement, the Promissory Note or the Assignment
Agreement on the basis of the same or a similar breach of a covenant or warranty or
other event of default.
5. MISCELLANEOUS
5.1 Assignment. This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors and assigns. Notwithstanding the
foregoing, City's obligation to make the Predevelopment Loan is personal to Borrower,
and shall not be assignable by Borrower by operation of law or otherwise absent the
express written consent of City, and any such assignment by operation of law or
otherwise shall be void. This Section shall not apply to an assignment to a wholly-
controlled affiliate of Borrower or a limited partnership whose general partner is a
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wholly-controlled affiliate of Borrower.
5.2. Insurance. Borrower shall maintain and keep in force, at Borrower's expense,
the insurance required pursuant to this Agreement. For each of Borrower's insurance
policies, Borrower shall provide to City within ten (10) days following execution of this
Agreement, but in no event later than the initial disbursement of Predevelopment Loan
Proceeds, a certificate of insurance and an endorsement which provides that no
cancellation, major change in coverage or expiration will be effective during the term of
this Agreement without 30 days written notice to the City prior to the effective date of
such cancellation, change in coverage or expiration. Upon request by the City from time
to time, Borrower shall deliver to the City originals or copies of all such insurance
policies and certificates evidencing such policies.
5.3 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
this Agreement shall be made in writing, and sent to the Parties at their respective
addresses specified below or to such other address as a Party may designate by
written notice delivered to the other parties in accordance with this Section. All such
notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered on receipt if delivery is confirmed by a return
receipt;
(iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender's account, in which case notice is effective on delivery if
delivery is confirmed by the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered
upon transmittal, provided that (a) a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery, or (b) a
transmission report is generated reflecting the accurate transmission thereof.
Any notice given by facsimile shall be considered to have been received on the
next business day if it is received after 5:00 p.m. recipient's time or on a
nonbusiness day.
CITY:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Fax No. (925) 829-9248
11
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BORROWER:
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544-1567
Attention: Executive Director
Fax No. (510) 582-6523
5.4 Waiver, Modification and Amendment. No modification or waiver of any
provision of this Agreement, nor any consent to any departure by Borrower therefrom,
shall in any event be effective unless the same shall be in writing, and then such waiver
or consent shall be effective only in the specific instance and for the specific purpose
for which given. No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other circumstances. No
amendment to or modification of this Agreement shall be effective unless and until such
amendment or modification is in writing, properly approved in accordance with
applicable procedures, and executed by the Parties.
5.5 Further Assurances. The Parties shall execute, acknowledge and deliver to the
other such other documents and instruments, and take such other actions, as either
shall reasonably request as may be necessary to carry out the intent of this Agreement.
5.6 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
5.7 Action bv the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or
permitted under this Agreement, such action shall be in writing, and such action may be
given, made or taken by the City Manager or by any person who shall have been
designated by the City Manager, without further approval by the City Council
5.8 Non-Liability of City, City Officials, Directors. Emplovees and Aaents. No
member, official, employee or agent of the City shall be personally liable to Borrower, or
any successor in interest, in the event of any default or breach by the City, or for any
amount of money which may become due to Borrower or its successor or for any
obligation of City under this Agreement. No director, officer, employee or agent of
Borrower shall be personally liable to the City, or any successor in interest, in the event
of any default or breach by Borrower, or for any amount of money which may become
due to City or its successor or for any obligation of Borrower under this Agreement.
5.9 No Third Party Beneficiaries. There shall be no third party beneficiaries to this
Agreement.
5.10 Captions: Construction. The headings of the sections and paragraphs of this
Agreement have been inserted for convenience only and shall not be used to construe
this Agreement. The language of this Agreement shall be construed as a whole
12
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according to its fair meaning and not strictly for or against any Party. Time is of the
essence in the performance of this Agreement.
5.11 Governina Law: Venue. This Agreement, the Promissory Note and the
Assignment Agreement shall be construed and enforced in accordance with the laws of
the State of California without regard to principles of conflicts of law. The Parties
consent to the jurisdiction of any federal or state court in the jurisdiction in which the
Property is located (the "Property Jurisdiction"). Borrower agrees that any
controversy arising under or in relation to this Agreement, the Promissory Note or the
Assignment Agreement shall be litigated exclusively in courts having jurisdiction in the
Property Jurisdiction. Borrower irrevocably consents to service, jurisdiction, and venue
of such courts for any such litigation and waives any other venue to which it might be
entitled by virtue of domicile, habitual residence or otherwise.
5.12 Attornevs' Fees. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the Party prevailing in any such action shall be entitled to recover against the
other Party all reasonable attorneys' fees and costs incurred in such action.
5.13 Severabilitv. If any term of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall
continue in full force and effect unless the rights and obligations of the Parties are
materially altered or abridged by such invalidation, voiding or unenforceability.
5.14 Entire Aareement: Exhibits. This Agreement, together with the Promissory Note,
the Assignment Agreement, and the additional documents referenced herein contains
the entire agreement between the Parties with respect to the subject matter hereof, and
supersedes all prior oral or written agreements between the Parties with respect
thereto. Exhibits A throuah C attached hereto are incorporated herein by this
reference.
5.15 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one and the same
instrument.
5.16 Citv Status. Borrower recognizes and agrees that City is not a commercial
lending institution, but a municipal corporation exercising its authority to protect the
publiC health, safety and welfare. Any duties or obligations which a commercial lending
institution may have to Borrower shall not apply to this transaction except as set forth
herein or in the Promissory Note or as otherwise required by law.
SIGNA TURES ON FOLLOWING PAGE.
13
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
DEVELOPER:
EDEN HOUSING, INC., a California nonprofit
pUblic benefit corporation
By:
Linda Mandolini, Executive Director
CITY:
CITY OF DUBLIN,
a municipal corporation
By:
Richard C. Ambrose
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
14
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Exhibit A
PREDEVELOPMENTBUDGET
Predevelopment Loan Proceeds shall be disbursed to Borrower for Borrower's share of
the following costs incurred after October 15, 2007, (the filing date of the Arroyo Vista
Tenant Association lawsuit (Case No. RG07351015)), and which are necessary to
secure HUD approval of the Disposition Application and environmental approval:
(1) $186,000Costs incurred by the City and the Authority (i) in connection with
environmental review pursuant to Sections 2.10 of the DDA, but
only after Borrower's 50% share of the $175,000 deposit has been
spent and (ii) Transactional Costs (as defined in Section 2.11 of the
DDA) incurred by the City and the Authority pursuant to Section
2.11 of the DDA;
(2) $ 75,000Costs incurred by Borrower for predevelopment activities for the Project,
including but not limited to, fees for
. Arch itects
. Civil Engineers
. Landscape Architects
. Appraisals
. Dublin San Ramon Services District Fees
. Borrower's Legal Counsel
(3) $64,000
Reimbursement of the unspent portion of Borrower's share of the
Initial Deposit as of October 15, 2007; provided, however, that this
line item shall only be disbursed if the Project does not proceed
due, in whole or in part, to the Arroyo Vista Tenant Association
lawsuit. In the event such lawsuit is dismissed with prejudice, the
funds allocated for this line item may be used for items (1) and (2).
$325,000
Maximum Predevelopment Loan Amount (total of (1)-(3)).
1
Exhibit A to Attachment 1
V3 oj 31
PROMISSORY NOTE
Dublin, California
,2007
$325,000
FOR VALUE RECEIVED, Eden Housing, Inc., a California nonprofit public
benefit corporation ("Borrower"), promises to pay to the City of Dublin, a municipal
corporation ("City"), in lawful money of the United States of America, the principal
sum of Three Hundred Twenty-Five Thousand Dollars ($325,000) or so much thereof
as may be advanced by City from time to time pursuant to the Predevelopment Loan
Agreement referred to below in the manner provided below.
This promissory note (this "Note") has been executed and delivered pursuant
to and in accordance with the terms and conditions of the Predevelopment Loan
Agreement, dated as of the date hereof, by and between Borrower and City (the
"Loan Agreement"), and is subject to the terms and conditions of the Loan
Agreement, which are by this reference incorporated herein and made a part hereof.
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the Loan Agreement.
This Note is secured by an assignment of agreements, reports, plans,
specifications and approvals pursuant to that certain Assignment Agreement dated
as of the date hereof, executed by Borrower as Assignor in favor of City. City shall
be entitled to the benefits of the security provided by the Assignment Agreement and
shall have the right to enforce the covenants and agreements of Borrower contained
in the Loan Agreement. Upon Borrower's acquisition of title to a portion of the
Property ("Borrower's Property") for the Project, this Note shall be secured by a
deed of trust executed by Borrower in favor of the City as beneficiary and recorded
against Borrower's Property (the "Deed of Trusf').
1. PAYMENTS
1.1 MATURITY DATE: INTEREST. The entire principal balance
outstanding under this Note shall be due and payable in full on the third (3rd)
anniversary of the date first written above ("Maturity Date") unless the term of this
Note is extended by mutual written agreement of the Parties or City forgives this
Note pursuant to the terms and conditions set forth in Section 1.7 of the Loan
Agreement; provided however, the Parties agree that if the City provides
construction and/or permanent financing for the Project prior to the Maturity Date, the
outstanding balance of the Predevelopment Loan shall be repaid with the proceeds
of such financing on the date such financing is provided. Provided that Borrower is
not in default under the Loan Agreement, the DDA, or the Assignment Agreement,
no interest shall accrue on the outstanding principal balance due under this Note.
1.2 PREPAYMENT. Borrower may, without premium or penalty, at
any time and from time to time, prepay all or any portion of the outstanding principal
Attachment 2 to the Resolution
/q <;p
balance due under this Note. Prepayments shall be applied first to any unpaid late
charges and other costs and fees then due and then to principal. In no event shall
any amount due under this Note become subject to any rights of offset, deduction or
counterclaim on the part of Borrower.
1.3 MANNER OF PAYMENT. All payments of principal on this Note
shall be made by certified or bank cashier's check to City at 100 Civic Plaza, Dublin,
California 94568 or such other place as City shall designate to Borrower in writing,
or by wire transfer of immediately available funds to an account designated by City in
writing.
2. DEFAULTS
2.1. EVENTS OF DEFAULT. The occurrence of anyone or more of
the following events shall constitute an event of default hereunder ("Event of
Default"):
(a) Borrower fails to pay when due the principal and interest
payable hereunder and such failure continues for ten (10) days after City notifies
Borrower thereof in writing.
(b) Pursuant to or within the meaning of the United States
Bankruptcy Code or any other federal or state law relating to insolvency or relief of
debtors ("Bankruptcy Law"), Borrower shall (i) commence a voluntary case or
proceeding; (ii) consent to the entry of an order for relief against it in an involuntary
case; (iii) consent to the appointment of a trustee, receiver, assignee, liquidator or
similar official; (iv) make an assignment for the benefit of its creditors; or (v) admit in
writing its inability to pay its debts as they become due.
(c) A court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (i) is for relief against Borrower in an
involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar
official for Borrower or substantially all of Borrower's assets, or (iii) orders the
liquidation of Borrower, and in each case the order or decree is not dismissed within
60 days.
(d) An Event of Default is declared under the DDA, the Loan
Agreement, or the Assignment Agreement after expiration of the applicable notice
and cure periods provided in such documents.
(e) Borrower fails to use Predevelopment Loan Proceeds in
accordance with the Loan Agreement or Borrower's request for disbursement.
2.2. REMEDIES. Upon the occurrence of an Event of Default
hereunder, City may, at its option (i) by written notice to Borrower, declare the entire
unpaid principal balance of this Note, together with all accrued interest thereon,
immediately due and payable regardless of any prior forbearance, (ii) exercise any
and all rights and remedies available to it under applicable law, and (iii) exercise any
and all rights and remedies available to City pursuant to the Loan Agreement or the
Assignment Agreement. Borrower shall pay all reasonable costs and expenses
incurred by or on behalf of City including, without limitation, reasonable attorneys'
2
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fees, incurred in connection with City's enforcement of this Note and the exercise of
any or all of its rights and remedies hereunder.
2.3. DEFAULT RATE. During any time that Borrower is in default
under this Note, interest shall accrue on the outstanding principal balance at the rate
of ten percent (10%) per annum (the "Default Rate"). When Borrower is no longer in
default, the Default Rate shall no longer apply. Notwithstanding the foregoing
provisions, if the interest rate charged exceeds the maximum legal rate of interest,
the rate shall be the maximum rate permitted by law. The imposition or acceptance
of the Default Rate shall in no event constitute a waiver of a default under this Note
or prevent City from exercising any of its other rights or remedies.
3. MISCELLANEOUS
3.1. WAIVER; AMENDMENT. The rights and remedies of City under
this Note shall be cumulative and not alternative. No waiver by City of any right or
remedy under this Note shall be effective unless in a writing signed by City. Neither
the failure nor any delay in exercising any right, power or privilege under this Note
will operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege by City will preclude any other or
further exercise of such right, power or privilege or the exercise of any other right,
power or privilege. No notice to or demand on Borrower will be deemed to be a
waiver of any obligation of Borrower or of the right of City to take further action
without notice or demand as provided in this Note. Borrower hereby waives
presentment, demand, protest, notices of dishonor and of protest and all defenses
and pleas on the grounds of any extension or extensions of the time of payment or of
any due date under this Note, in whole or in part, whether before or after maturity
and with or without notice. There shall be no amendment to or modification of this
Note except by written instrument executed by Borrower and City.
3.2. NOTICES. Any notice required or permitted to be given
hereunder shall be given in accordance with Section 5.3 of the Loan Agreement.
3.3. SEVERABILITY. If any provision in this Note is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of this
Note will remain in full force and effect. Any provision of this Note held invalid or
unenforceable only in part or degree will remain in full force and effect to the extent
not held invalid or unenforceable.
3.4 GOVERNING LAW. This Note shall be construed and enforced
in accordance with the laws of the State of California without regard to principles of
conflicts of laws. The Parties consent to the jurisdiction of any federal or state court
in the jurisdiction in which the Property is located (the "Property Jurisdiction").
Borrower agrees that any controversy arising under or in relation to this Note shall be
litigated exclusively in courts having jurisdiction in the Property Jurisdiction.
Borrower irrevocably consents to service, jurisdiction, and venue of such courts for
any such litigation and waives any other venue to which it might be entitled by virtue
of domicile, habitual residence or otherwise.
3
~15f3 )
3.5 PARTIES IN INTEREST. This Note shall bind Borrower and its
successors and assigns and shall accrue to the benefit of City and its successors
and assigns.
3.6 SECTION HEADINGS. CONSTRUCTION. The headings of
Sections in this Note are provided for convenience only and will not affect its
construction or interpretation.
3.7 RELATIONSHIP OF THE PARTIES. The relationship of
Borrower and City under this Note is solely that of borrower and lender, and the loan
evidenced by this Note and secured by the Assignment Agreement will in no manner
make City the partner or joint venturer of Borrower.
3.8 TIME IS OF THE ESSENCE. Time is of the essence with
respect to every provision of this Note.
3.9 NONRECOURSE.
(a) Prior to recordation of the Deed of Trust against Borrower's Property,
this Note shall be fully recourse against the Borrower and any judgment or execution
thereof entered in any action, legal or equitable, on this Note may be enforced
personally against the Borrower
(b) Following the recordation of the Deed of Trust against Borrower's
Property, except as expressly provided in this Section 3.9, neither Borrower nor its
partners, if any, shall have personal liability for payment of the principal of, or interest
on, this Note, and the sole recourse of City with respect to the payment of the
principal of, and interest on, this Note shall be to the Project and Borrower's Property
and any other collateral held by City as security for this Note; provided however,
nothing contained in the foregoing limitation of liability shall:
(A) impair the enforcement against all such security for the Predevelopment
Loan of all the rights and remedies of the City under the Deed of Trust and any
financing statements City files in connection with the Predevelopment Loan as each of
the foregoing may be amended, modified, or restated from time to time;
(B) impair the right of City to bring a foreclosure action, action for specific
performance or other appropriate action or proceeding to enable City to enforce and
realize upon the Deed of Trust, the interest in the Project and Borrower's Property
created thereby and any other collateral given to City in connection with the
indebtedness evidenced hereby and to name the Borrower as party defendant in any
such action;
(C) be deemed in any way to impair the right of the City to assert the unpaid
principal amount of the Predevelopment Loan as a demand for money within the
meaning of Section 431.70 of the California Code of Civil Procedure or any
successor provision thereto;
(D) constitute a waiver of any right which City may have under any bankruptcy
law to file a claim for the full amount of the indebtedness owed to City hereunder or
to require that the Project and Borrower's Property shall continue to secure all of the
4
c2c) ~J I
indebtedness owed to City hereunder in accordance with this Note and the Deed of
Trust; or
(E) limit or restrict the ability of City to seek or obtain a judgment against
Borrower to enforce against Borrower and its general partners, if any, to:
(1) recover under Section 3.2 of the Loan Agreement (pertaining to
Borrower's indemnification obligations), or
(2) recover from Borrower and its general partners, if any,
compensatory damages as well as other costs and expenses incurred by City
(including without limitation attorney's fees and expenses) arising as a result
of the occurrence of any of the following:
(a) any fraud or material misrepresentation on the part of the
Borrower or any general partner thereof, or any officer, director or
authorized representative of Borrower in connection with the request
for or creation of the Predevelopment Loan, or in any Predevelopment
Loan document, or in connection with any request for any action or
consent by City in connection with the Predevelopment Loan;
(b) any failure to maintain insurance on Borrower's Property and
the Project as required pursuant to the Predevelopment Loan
documents;
(c) failure to pay taxes, assessments or other charges which
may become liens on Borrower's Property or the Project;
(d) the presence of hazardous or toxic material or waste on
Borrower's Property or the Project or other violation of the Borrower's
obligations under of the Loan Agreement, the DDA or the Deed of Trust
pertaining to environmental matters;
(e) the occurrence of any act or omission of Borrower that
results in waste to or of the Borrower's Property or the Project and
which has a material adverse effect on the value of the Project or
Borrower's Property;
(f) the material misapplication of the Predevelopment Loan
Proceeds;
(g) the removal or disposal of any personal property or fixtures
or the retention of rents, insurance proceeds, or condemnation awards
in violation of the Deed of Trust; and
(h) the material misapplication of the proceeds of any insurance
policy or award resulting from condemnation or the exercise of the
power of eminent domain or by reason of damage, loss or destruction
to any portion of the Project or Borrower's Property.
5
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IN WITNESS WHEREOF, Borrower has executed and delivered this Note as
of the date first written above.
BORROWER
Eden Housing, Inc., a California nonprofit
public benefit corporation
By:
Linda Mandolini
Executive Director
6
JJf 131
ASSIGNMENT OF AGREEMENTS, PLANS AND SPECIFICATIONS
FOR VALUE RECEIVED, effective as of ,2007 (the "Effective
Date"), Eden Housing, Inc., a California nonprofit public benefit corporation
(" Assignor") hereby assigns and grants to the City of Dublin, a municipal corporation
(the "City") all of its right, title and interest in and to all of the following but (i) only as to
the following documents that have been paid for with Predevelopment Loan Proceeds,
or if only a portion of a document has been paid for with Predevelopment Loan
Proceeds then only that portion of such document paid for with Predevelopment Loan
Proceeds; and (ii) only for those contracts and agreements in which Assignor as the
developer and the Contractor (other than Citation) are the sole parties (all of which
hereafter shall collectively be referred to as the "Assigned Documents").
(A) All architectural, design, engineering, consulting and construction
, contracts, and any and all amendments, modifications, supplements,
addenda and general conditions thereto (collectively "Agreements"),
heretofore or hereafter entered into by Assignor and any architect,
engineer, analyst, contractor or other person or entity ("Contractor") in
connection with the preparation of plans, specifications, studies, analyses,
drawings or any other similar service related to the Property, the Project,
or the improvements existing or to be installed or constructed on the
Property (the "Improvements"); and
(B) All reports, analyses, studies, plans and specifications, shop drawings,
working drawings, amendments, modifications, changes, supplements,
general conditions and addenda thereto (collectively "Reports, Plans and
Specifications") heretofore or hereafter prepared by or for Assignor or its
agents, employees or any Contractor with respect to the Property, the
Project or the Improvements.
In addition, the parties hereto agree as follows:
1. This Assignment of Agreements, Plans, and Specifications (this
"Assignment Agreement") is made pursuant to that certain Predevelopment Loan
Agreement executed by and between Assignor and City dated as of the date hereof (the
"Loan Agreement"). Capitalized terms used without definition herein shall have the
meaning ascribed to such terms in the Loan Agreement.
2. This Assignment Agreement is made to secure: (a) payment to the City of
all sums now or hereafter owing under the Promissory Note dated as of the date hereof
made by Assignor for the benefit of City, and any and all additional advances,
modifications, extensions, renewals and amendments thereof; and (b) payment and
performance by Assignor of all its obligations under the Loan Agreement.
Attachment 3 to the Resolution
J513/
3. Assignor hereby irrevocably appoints City as its attorney-in-fact (which
agency is coupled with an interest) upon the occurrence of an Event of Default by
Assignor under the Loan Agreement, to demand, receive, and enforce any and all of
Assignor's rights with respect to the Assigned Documents, and to perform any and all
acts in the name of Assignor or in the name of the City with the same force and effect
as if performed by Assignor in the absence of this Assignment Agreement.
4. Assignor agrees to obtain from each Contractor and deliver to City a duly
executed Consent substantially in the form attached hereto as Exhibit A. Assignor
represents and warrants to City that no previous assignment of its respective rights or
interest in or to any of the Assigned Documents has been made. So long as the City
holds or retains any interest under the Loan Agreement or the Promissory Note,
Assignor agrees not to assign, sell, pledge, transfer, mortgage, or hypothecate its rights
or interest in any of the Assigned Documents without prior written approval of the City.
The City shall be deemed to have approved any assignment of the Assigned
Documents to a senior lender provided that City has approved such senior lender.
5. This Assignment Agreement shall be binding upon and inure to the benefit
of the heirs, legal representatives, assigns, and successors-in-interest of Assignor 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 Assignor contained in the Loan Agreement or the DDA.
6. Unless an Event of Default (as defined in the Loan Agreement) shall have
occurred, Assignor shall be entitled (subject to the provisions of Section 4 above) to
enjoy and enforce all of its rights under the Assigned Documents. If such an Event of
Default occurs and City gives written notice to any Contractor who is a party to any
Assigned Document referring to this Assignment Agreement and stating that such an
Event of Default has occurred and that City intends to exercise its rights hereunder (an
"Exercise Notice"), then City shall be entitled thereafter to enjoy and enforce all of the
rights of Assignor under such Assigned Document and shall become bound to perform
all future obligations of Assignor thereunder, it being understood that in no event shall
City be liable for payments or costs relating to any work which any Contractor has
performed prior to the date of City's delivery of such Exercise Notice. Unless and until
such Exercise Notice is given, City shall not be obliged to perform any of the obligations
of Assignor under the Assigned Documents. .
7. Assignor represents and warrants that to the best of its knowledge after
reasonable inquiry, there are no defaults under any Assigned Document by any party
thereto.
8. Assignor further represents and warrants that all sums due and owing to
any Contractor to date under any Assigned Document have been duly paid in full,
except to the extent deferral of such sums is allowed pursuant to such Assigned
Document.
9. City may assign its rights under this Assignment Agreement, and the
Assigned Documents, and the rights and obligations of any assignee of City shall be the
2
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same as provided herein as to City and Contractor. City may, in its discretion, make
any such assignment to a third party, with the consent of the Contractor who is a party
to such Assigned Documents, provided such consent shall not be unreasonably
withheld, conditioned or delayed.
10. This Assignment Agreement shall not be deemed to release or affect in
any way the obligations of Assignor to any Contractor under the Assigned Documents.
11. Assignor is executing this Assignment Agreement to induce City to enter
into and disburse fJ,.mds pursuant to the Loan Agreement, and Assignor understands
that City would not do so but for the execution and delivery of this Assignment
Agreement by Assignor.
12. Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Assignment Agreement shall be made in writing, and sent to the parties
at their respective addresses specified below (or in the case of Contractor, to the
address specified in the Consent attached hereto) or to such other address as a party
may designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by:
(i) personal delivery, in which case notice is effective upon delivery;
(ii) certified or registered mail, return receipt requested, in which case
notice shall be deemed detivered on receipt if delivery is confirmed by a return
receipt;
(iii) nationally recognized overnight courier, with charges prepaid or
charged to the sender's account, in which case notice is effective on delivery if
delivery is confirmed by the delivery service;
(iv) facsimile transmission, in which case notice shall be deemed delivered
upon transmittal, provided that (a) a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery, or (b) a
transmission report is generated reflecting the accurate transmission thereof.
Any notice given by facsimile shall be considered to have been received on the
next business day if it is received after 5:00 p.m. recipient's time or on a
nonbusiness day.
CITY:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
3
,2'1J( 3/
ASSIGNOR:
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544-1567
Attention: Executive Director
13. Amendments.. This Assignment Agreement may be modified only by a
written instrument signed by the Parties.
14. Further Assurances. The Parties shall execute, acknowledge and deliver to
the other such other documents and instruments, and take such other actions, as either
shall reasonably request as may be necessary to carry out the intent of this Assignment
Agreement.
15. Parties Not Co-Venturers. Nothing in this Assignment Agreement is intended
to or shall establish the Parties as partners, co-venturers, or principal and agent with
one another.
16. Action bv the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or
permitted under this Assignment Agreement, such action shall be in writing, and such
action may be given, made or taken by the City Manager or by any person who shall
have been designated by the City Manager, without further approval by the City Council
unless the City Manager determines that such matter requires the consent of the City
Council.
17. Non-Liability of City and City Officials, Emplovees and Agents. No member,
official, employee or agent of the City shall be personally liable to Assignor, or any
successor in interest, in the event of any default or breach by the City, or for any
amount of money which may become due to Assignor or its successor or for any
obligation of City under this Assignment Agreement.
18. No Third Party Beneficiaries. There shall be no third party beneficiaries to
this Assignment Agreement.
19. Headinas: Construction. The headings of the sections and paragraphs of
this Assignment Agreement have been inserted for convenience only and shall not be
used to construe this Assignment Agreement. The language of this Assignment
Agreement shall be construed as a whole according to its fair meaning and not strictly
for or against any Party. Time is of the essence in the performance of this Assignment
Agreement.
20. Governina Law: Venue. This Assignment Agreement shall be construed in
accordance with the laws of the State of California without regard to principles of
conflicts of law. The Parties consent to the jurisdiction of any federal or state court in
the jurisdiction in which the Property is located (the "Property Jurisdiction"). Assignor
agrees that any controversy arising under or in relation to this Agreement shall be
4
)g~31
litigated exclusively in courts having jurisdiction in the Property Jurisdiction. Assignor
irrevocably consents to service, jurisdiction, and venue of such courts for any such
litigation and waives any other venue to which it might be entitled by virtue of domicile,
habitual residence or otherwise.
21. Attornevs' Fees. If any claim, at law or otherwise is made by either Party, the
prevailing party or the nondefaulting party, as the case may be, shall be entitled to its
costs and reasonable attorneys' fees.
22. Severabilitv. If any term of this Assignment Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall continue in full force and effect unless the rights and obligations of the
Parties are materially altered or abridged by such invalidation, voiding or
unenforceability.
23. Counterparts. This Assignment Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which together shall constitute
one agreement.
SIGNATURES ON FOLLOWING PAGE.
5
dq~31
IN WITNESS WHEREOF, Assignor and City have duly executed this Assignment
Agreement effective as of the date first above written.
CITY:
CITY OF DUBLIN,
a municipal corporation
By:
Name:
City Manager
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
ASSIGNOR:
EDEN HOUSING, INC.,
a California nonprofit public benefit corporation
By:
Its:
6
30 ~31
Exhibit A
CONSENT
This Consent ("Consent") is executed effective as of , 20_, pursuant to
that certain Assignment of Agreements, Plans and Specifications ("Assignment Agreement")
executed by and between Eden Housing, Inc., a California nonprofit public benefit corporation
("Assignor") and the City of Dublin, a municipal corporation (the "City") dated as of
,2007. Unless othelWise defined herein, capitalized terms used in this Consent
shall have the meanings given them in the Assignment Agreement.
The undersigned architect, en.,9ineer, contractor and/or Contractor ("Contractor") hereby
consents to the Assignment Agreement and the assignments contemplated thereby, and hereby
waives all provisions in the Assigned Documents to which Contractor is a party which would
impair, hinder or prevent the making of any such assignment by Assignor to City or the
enforcement thereof by City.
Contractor agrees that if, at any time, the City shall, pursuant to its rights under the
Assignment Agreement deliver an Exercise Notice to Contractor, then provided that Contractor
has received, receives or continues to receive the compensation called for under the Assigned
Documents to which Contractor is a party, the City may, at its option, use and rely upon the
Reports, Plans and Specifications for the purposes for which they were prepared, and
Contractor will continue to perform its obligations under the Assigned Documents to which
Contractor is a party for the benefit and account of the City in the same manner as if performed
for the benefit or account of Assignor in the absence of the Assignment Agreement. Contractor
agrees that it shall rely conclusively upon any Exercise Notice given to Contractor by City, and
Contractor agrees to be bound by such Exercise Notice.
By its execution of this Consent, Contractor agrees to look solely to Assignor and its
successors in interest for performance of Assignor's obligations under the Assigned Documents
to which Contractor is a party unless and until Contractor shall have received an Exercise
Notice from City.
Contractor agrees that, after the occurrence of an Event of Default under the Loan
Agreement and the giving of an Exercise Notice by City, Contractor will perform all of its
obligations under the Assigned Documents to which Contractor is a party, City being liable to
pay the costs thereof relating to any services performed at the direction of City after the giving of
the Exercise Notice. However, City is not and will in no event become liable for any costs,
charges, expenses and liabilities incurred under the Assigned Documents or othelWise unless it
has given the Exercise Notice (and, if it has given the Exercise Notice, City will not become
liable for any such costs, charges or expenses incurred prior to the giving of such Exercise
Notice), and the fact that Assignor may not have paid and/or may be unable to pay any such
costs, charges, expenses or liabilities may not be asserted by Contractor as a defense to its
obligations to perform services for City as set forth herein.
Contractor agrees that, notwithstanding anything hereinabove contained or contained in
the Assigned Documents to the contrary, City will have the right to receive and to use (without
cost to City) any and all Reports, Plans and Specifications relating to the Property, the Project or
the Improvements, as the same may be amended or modified from time to time, which
1
Exhibit A to Attachment 3
3{ aj 3/
Contractor may own or have the right to use and to grant others the right to use. Contractor
further agrees that, upon the written request of City (whether or not any Event of Default has
occurred), it will execute and deliver a certification confirming City's rights with respect to such
Reports, Plans, and Specifications as City from time to time may reasonably request.
Contractor agrees that for so long as the Assignment Agreement is effective, if Assignor
defaults in making any required payment or in pertorming any other obligation under any
Assigned Document to which Contractor is a party, Contractor shall give prompt written notice
thereof to City. Unless and until such notice is given to City, and for a period of 15 business
days thereafter, Contractor shall not exercise any of its rights or remedies against Assignor
under the Assigned Documents (including, without limitation, the right to terminate any Assigned
Document or to stop work thereunder). After such notice is given and for a period of 15
business days thereafter, City may, at its option, cure (but shall have no obligation to cure) any
such default by Assignor and, if such default is so cured during such notice period, Contractor
shall continue performance under the Assigned Documents to which such Contractor is a party.
Contractor represents and warrants that (i) the Assigned Documents to which Contractor
is a party are in full force and effect, and to Contractor's knowledge there are no defaults
thereunder by any party thereto; (ii) Contractor has made no assignment of any Assigned
Document to which Contractor is a party or of its rights thereunder (other than to City); and (iii)
there presently exists no unpaid claims presently due to Contractor, except as disclosed in
writing to the City, arising in connection with the pertormance of Contractor's obligations under
the Assigned Documents to which Contractor is a party. Contractor agrees that for so long as
the Assignment Agreement is effective, Contractor shall not assign its rights or interest in any of
the Assigned Documents (absent the prior written consent of City) to any entity other than a
lender whose loan is secured by the Property, the Project or the Improvements with the prior
written approval of the City.
IN WITNESS WHEREOF, Contractor has duly executed this Consent as of the date first written
above.
CONTRACTOR
By: Contractor's Address:
Its: Telephone:
Facsimile:
2 Exhibit A to Attachment 3