HomeMy WebLinkAboutReso 018-03 Eden Hous Pre Dev Loan RESOLUTION NO. 18 - 03
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
AUTHORIZING A PREDEVELOPMENT LOAN WITH EDEN HOUSING, INC.
WHEREAS, the City Council finds that there is a severe shortage in the City of Dublin of housing
affordable to lower-income seniors; and
WHEREAS, development of affordable senior housing in close proximity to a senior center will
serve a public purpose; and
WHEREAS, the City intends to develop a senior center at 7606 Amador Valley Boulevard; and
WHEREAS, the City Council selected Eden Housing, Inc. ("Eden") to develop affordable senior
housing adjacent to such senior center; and
WHEREAS, Eden will need funds to prepare applications for a HUD Section 202 Loan and 9%
Low-Income Housing Tax Credits for the housing development, and to undertake additional
predevelopment activity in connection with such applications; and
WHEREAS, it is now necessary for Eden Housing to secure funds to begin the foregoing
predevelopment work; and
WHEREAS, the City of Dublin is willing and able to provide financing for the predevelopment
work on the senior housing site.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin, a
Municipal Corporation, authorizes providing a predevelopment loan to Eden in an amount up to Two
Hundred Eighty Thousand Dollars ($280,000) for the purposes ofpredevelopment work on an affordable
senior housing project to be located at 7606 Amador Valley Boulevard.
FURTHER RESOLVED, the City Council approves the Predevelopment Loan Agreement, the
Collateral Assignment of Architect's Contract and the Assignment Agreement attached to the Staff Report
titled "Predevelopment Loan Agreement with Eden Housing, Inc.," provided to City Council on February
4, 2003 and authorizes and directs the Mayor 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
intent of this resolution.
PASSED, APPROVED, AND ADOPTED this 4th day of February, 2003.
AYES: Councilmembers McCormick, Oravetz, Sbranti and Zika and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN:
None
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K2/G/2_4_O3/reso-edenhousil~.doc (Item 8.7)
g:\cdbg\sffrpts\4-01 CC Reso - City-County Agreement
PREDEVELOPMENT LOAN AGREEMENT
This Predevelopment Loan Agreement (this "Agreement") is entered into effective
as of F~,~/~,~x/',2003 ("Effective Date") by and between the City of Dublin, a public
body, corporate and politic (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 intends to acquire from Alameda County the parcel located
at 7606 Amador Valley Boulevard and more particularly described in ~ attached
hereto (the "Property");
WHEREAS, the City intends to construct a senior center on a portion of the
Property and desires to lease the remainder of the Property to a nonprofit organization
for the development and operation of an affordable senior housing development;
WHEREAS, the City invited several nonprofit organizations, including Borrower,
to submit proposals for the development of senior housing on the Property;
WHEREAS, following consideration at a public hearing, the City selected
Borrower to construct and operate a three-story building consisting of approximately 50
units of affordable housing for Iow-income senior households (the Development");
WHEREAS, to provide financing for predevelopment expenses including site
investigation, architectural and engineering Services, and preparation of applications for
construction and permanent financing, Borrower has requested, and the City has
approved, the loan described below; and
WHEREAS, the 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 loan proceeds pursuant to this Agreement
will serve the purposes of the Fund by increasing the City's supply of affordable Iow-
income housing.
NOW THEREFORE, in consideration of their mutual undertakings and other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows.
SECTION ONE: THE LOAN AND DISBURSEMENT OF LOAN PROCEEDS
1.. 1 ~3_e_[.o_a~. Subject to the terms and conditions of this Agreement and for the
purposes described herein, City agrees to make a loan to Borrower in the amount of
Two hundred: eighty thousand Dollars ($28D_Z)_Q.Q) (the "Loan"). The outstanding
principal balance of the Loan shall bear simple interest at the rate of five percent (5%)
per annum until paid in full. The Loan shall be evidenced by a promissory note
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attached hereto as EXhibit B (the "Promissory Note"). The outstanding principal
balance of the Loan and interest accrued thereon shall be payable in one lump sum on
the fifth anniversary of the Loan origination date ("Maturity Date"), unless the Loan is
forgiven pursuant to the terms hereof; provided however, the Parties agree that if the
City provides construction and/or permanent financing for the Development prior to the
Maturity Date, the outstanding balance of the Loan shall be repaid with the proceeds of
such financing on the date such financing is provided.
1.2 Security for the Loan. The Loan shall be secured by Borrower's assignment to the
City of Borrower's rights to any and all architectural agreements, plans and
specifications, reports, and approvals relating to the Property or the Development which
Borrower has obtained or which will be prepared pursuant to any and all agreements
Borrower has entered into as of the time City exercises its rights under the Assignment
Agreement and Collateral Assignment of Architect's Contract (collectively, hereafter the
"Assignment Agreements") which Borrower shall execute in connection herewith. The
Assignment Agreements shall be substantially in the forms attached hereto as Exhibits
C-1 and C-2. The City agrees to subordinate the Assignment Agreements to all
construction and permanent lenders for the Development. The Assignment
Agreements shall terminate upon repayment of the Loan.
1.3 Use of Loan Proceeds. The proceeds of the Loan ("Loan Proceeds") shall be
used solely and exclusively for predevelopment costs for the Development as set forth
in this Agreement. Funds shall be disbursed to Borrower on a cost-reimbursement
basis in accordance with Section 1.4.1.
1.4 Disbursement of Proceeds. Upon Borrower's satisfaction of the conditions set forth
in Section 1.4.1, the City shall disburse the Loan Proceeds for Borrower's
predevelopment costs generally in the amounts and for the items set forth-in the
Predevelopment Budget attached hereto as Exhibit D unless the City Manager or
his/her designee provides written approval for a different use of the funds.
1.4.1 Conditions to Disbursement of Funds.
(a) The City shall disburse the Loan Proceeds upon satisfaction of the following
conditions:
(i) Borrower's execution and delivery to the City of this Agreement, the
Promissory Note, and the Assignment Agreements;
(ii) 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
(iii) .City's receipt of Borrower's written request for disbursement of funds
specifying the amount and use of the requested funds, accompanied by (1) copies of
bills and invoices from third parties, (2) a statement indicating services provided directly
by Borrower, indicating the services supplied, the persons providing such services, and
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a breakdown of cost by function (e.g. accounting, development, administration), and (3)
such other documentation as City may reasonably require.
(b) Notwithstanding any other provision of this Agreement, the City shall have no
obligation to disburse any portion of the Loan Proceeds to Borrower following:
(i) termination of this Agreement by mutual agreement of the Parties; or
(ii) notification by the City to Borrower of a default under this Agreement;
provided however, that City shall resume disbursement of the Loan Proceeds pursuant
to the terms of this Agreement if Borrower cures the default within the applicable cure
period. An event of default shall occur if Borrower fails to use Loan Proceeds in
accordance with this Agreement, fails to use Loan Proceeds in accordance with
Borrower's request for disbursement, fails to maintain insurance as required by City, or
materially breaches any other provision of this Agreement.
1.4.2 Predevelopment Activities. Borrower's predevelopment activities shall
include, without limitation, the preparation of engineering reports, architectural plans,
and financial analyses to the extent necessary to apply for construction and permanent
financing for the Development. BorrOwer shall aPply for Section 202 funding from the
U.S. Department of Housing and Urban Development ("HUD"), and shall also apply to
the California Tax Credit Allocation Committee for a reservation of Low-Income Housing
Tax Credits. If Borrower is selected to receive the HUD grant or is awarded a
reservation of Low-Income Housing Tax Credits, City acknowledges that it will be
necessary for Borrower to obtain additional financing to make the Development
economically feasible. Such additional financing may include, without limitation, an
Alameda County HOME loan, an additional City loan, a Federal Home Loan Bank
Affordable Housing Program loan, funds from State of California housing programs, and
conventional loans 'for construction and permanent financing.
City acknowledges that if the Loan remains outstanding, the award of a HUD
grant will be conditioned upon the City's execution and recordation of an agreement
pursuant to which the Loan will be assigned to a newly-formed, single-asset nonprofit
public benefit corporation and upon the amendment of this Agreement and the
Promissory Note to add terms which will subordinate the City's documents and the
City's rights thereunder to the rights of HUD under its documents. City further
acknowledges that if the Loan remains outstanding, use of Low-Income Housing Tax
Credits may require Borrower to assign the Loan to a newlyJormed partnership in
which Borrower or a newly-formed affiliate of Borrower serves as general partner. City
and Borrower acknowledge that some restrictions and limitations which may be placed
on the Development (such as, but not limited to, an inability to encumber the City's fee
interest in the Property) may limit the available financing sources.
1.4.3 Forgiveness of the Loan. (a) Borrower agrees to use its good faith best
effortS to diligently complete the predevelopment activities; however, Borrower neither
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guarantees nor covenants to the City that Borrower shall be able to obtain construction
and Permanent financing for the Development. In the event that Borrower determines
in good faith, that despite its best efforts, Borrower is unable to obtain firm commitments
for construction and permanent financing for the Development prior to December 31,
2004 (or such later date that the City may in its reasonable discretion approve), on
terms that make the Development economically feasible, as reasonably determined by
Borrower, Borrower shall so notify the City and may submit a written request that .City
forgive Borrower's obligation to repay the principal balance of the Loan and interest
accrued thereon. Upon City's request, Borrower will meet with City staff to discuss
Borrower's determination.
As soon as practica~ following City's receipt of Borrower's request, City shall forgive the
outstanding balance of the Loan and interest accrued thereon upon Borrower's delivery
to the City of all agreements, plans, specifications, reports and approvals pursuant to
the Assignment Agreements. Upon the delivery of such documents, City shall deliver to
Borrower the original Promissory Note marked "Cancelled." Upon the return of the
cancelled Promissory Note to Borrower, this Agreement shall be terminated; provided
however, Borrower's obligation to indemnify City under Sections 3.3 and 3.4 of this
Agreement shall survive the termination of this Agreement.
(b) Notwithstanding the foregoing, the City shall have no obligation to forgive
Borrower's obligation to repay the Loan and cancel the Promissory Note if, after the
applicable notice and cure period, the City has declared Borrower in default under this
Agreement and such default remains uncured at the time of Borrower's request for
forgiveness of the Loan.
(c) City shall have the option to terminate this Agreement: (i) if Borrower is
unable to obtain firm commitments for construction and permanent financing for the
Development within two years following the Effective Date (or such later date that the
City may in its reasonable discretion approve), or (ii) if Borrower is unable to commence
construction of the Development within five years following the Effective Date (or such
later date that the City may in its reasonable discretion approve). If City terminates this
Agreement under this Section 1.4.3(c), as soon as practical thereafter, Borrower shall
convey to City all agreements, plans, specifications, reports and approvals pursuant to
the Assignment Agreements, and upon the delivery of such documents, the City shall
forgive the loan and return the original Promissory Note marked "Cancelled" to
Borrower. Upon the return of the cancelled Promissory Note to Borrower, this
Agreement shall be terminated; provided however, Borrower's obligation to indemnify
City under Sections 3.3 and 3.4 of this Agreement shall survive the termination of this
Agreement. The Parties acknowledge that the City's decision to terminate the
Agreement pursuant to this Section 1.4.3(c) shall not be, nor shall it be deemed to be, a
default by Borrower under this Agreement.
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SECTION TWO: 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 race, color, religion, creed, sex, sexual orientation,
marital status, familial status, ancestry or national origin in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Development, 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 Development.
2.3. Mandatory Language in All Subsequent 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 Development 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 race, color, creed, religion, sex, sexual orientation,
marital status, familial status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the property herein
conveyed nor shall the grantee or any person claiming under or through the
grantee establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees in the property herein
conveyed. The foregoing covenant shall run with the land."
(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 race, color, creed, religion, sex, sexual orientation, marital
status, familial status, national origin or ancestry 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:
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"There shall be no discrimination against or segregation of any person or group
of persons on account of race, color, creed, religion, sex, sexual orientation, marital
status, familial status, national origin or ancestry 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."
SECTION THREE: ADDITIONAL COVENANTS, REPRESENTATIONS AND
WARRANTIES OF BORROWER
Borrower covenants, represents and warrants to the City as follows:
3.1 Organization 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 lease the Property, to develop, own and operate the Development, to carry
on its business as now conducted, and to execute, deliver and perform its obligations
under this Agreement, the Promissory Note, the Assignment Agreements. 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.
Borrower covenants that it shall engage in no activity which may cause such tax-
exempt status to be jeopardized.
3.2 Authorization of the Loan; No Violation. The execution, delivery and performance
of this Agreement, the Promissory Note, the Assignment Agreements have been duly
authorized by Borrower, and this Agreement, the Promissory Note and the Assignment
Agreements, 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
Agreements and performance thereunder will not result in a breach of or constitute a
default under any agreement, indenture or other instrument to which Borrower is a party
or by which Borrower may be bound.
3.3 Hazardous Materials. (a) Borrower agrees not to release, use, manufacture,
handle, generate, store, treat, discharge, bury or dispose of any Hazardous Materials
on, under, in or about the Property, or transport to or from the Property any Hazardous
Materials. Borrower agrees to indemnify and hold the City, its officers, employees and
agents, harmless from and against any and all loss, claim, liability, damage, injunctive
relief, injuries to person, property or natural resources, cost, expense (including
reasonable fees of attorneys, expert witnesses, and other professionals advising or
assisting the City), action or cause of action, arising in connection with the actual or
alleged release or presence of any Hazardous Materials on, under,' in or about the
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Property, whether foreseeable or unforeseeable, regardless of the source of such
release or when such release occurred or such presence is discovered. The foregoing
indemnity includes, without limitation, all costs in law or in equity of investigation,
assessment, containment, removal, remediation of any kind, and disposal of such
Hazardous Materials, all cost of determining whether the Property is in compliance, and
causing the Property to be in compliance, with all applicable Hazardous Materials Laws,
all costs associated with claims for damages to persons, property, or natural resources
and court costs.
(b) The term "Hazardous Materials Law" means all federal, state, and
local laws, ordinances and regulations and standards, rules, policies and other
governmental requirements and any court judgments applicable to Borrower, to the
Property or the Development, relating to industrial hygiene, environmental or unsafe
conditions, or human health, including, but not limited to, those relating to the
generation, manufacture, storage, handling, transportation, disposal, release, emission
or discharge of Hazardous Materials. The term "Hazardous Materials" includes
petroleum and petroleum products, flammable explosives, radioactive materials
(excluding radioactive materials in smoke detectors), polychlorinated biphenyls, lead,
asbestos in any form that is or could become friable, hazardous waste, toxic or
hazardous substances or other related materials regulated by Hazardous Materials Law
in any manner whatsoever. The term shall not, however, apply to those materials
commonly used in accordance with all applicable laws in the construction of the
Development and in the operations of a residential rental project.
3.4 Indemnification. Borrower shall indemnify, defend and hold the City, its elected
and appointed officials, employees, contractors and agents (collectively
"lndemnitees") harmless from and against any and all demands, claims, suits, costs
(including reasonable attorneys' fees), losses, damage, causes of action, fines,
judgments, or liabilities of any kind 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 Development,
including without limitation, site investigations conducted by or for Borrower, (b) any
failure of any representation by Borrower to be correct in all material respects when
made, (c) injury or death to persons or damage to. property or other loss occurring on
the Property or in connection with Borrower's operations, whether caused by the
negligence or any other act or omission of Borrower or any other person or by
negligent, faulty, inadequate or defective design, building, construction or maintenance
or any other condition or otherwise, (d) any claim, demand or cause of action, or any
action or other proceeding, whether meritorious or not, brought or asserted against any
Indemnitee which relates to or arises out of the Property, the Development, the Loan,
the Promissory Note, the Assignment Agreements, 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 Loan and the expiration or
termination of this Agreement. Borrower's indemnity obligations shall not apply to any
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costs, losses, claims, or liability caused Solely by the willful misconduct or gross
negligence of the City, its officers, employees or agents.
3.5 Books and Records; Signs. 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 Development and the Loan. Upon City's request, Borrower
shall use its best efforts to identify the City in publicity concerning the Development.
3.6 Other Documents. Upon the reasonable request by the City, Borrower shall deliver
to the City a copy of documents related to the Development, including without limitation,
construction contracts, consulting agreements, architects' agreements, loan documents,
management plans, property management agreements, and forms of tenant lease.
3.7 Litigation. 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 other than those heretofore disclosed by Borrower to City in
writing.
3.8 Accuracy of Financial Statements; No Adverse Change. The financial statements
heretofore delivered by Borrower to City present fairly and accurately the financial
condition of Borrower, and have been prepared in accordance with generally accepted
accounting principles consistently applied. Borrower certifies that there has been no
adverse change since the date of the most recent financial statements Borrower has
provided to City in Borrower's financial condition, organization, operation, business
prospects, fixed properties, or personnel.
SECTION FOUR: DEFAULT AND REMEDIES
4.1 Events of Default. Provided that City has provided written notice to Borrower
specifying the nature of such default, the occurrence of any of the following events
shall, at the option of the City, constitute an event of default by Borrower under this
Agreement, if such default remains uncured 15 days following delivery of notice of
monetary default or 30 days following delivery of notlce of non-monetary default.
(a) Borrower fails to pay when due any principal or interest payment or other
sum due under this Agreement or the Promissory Note;
(b) Borrower fails to comply with or fully and timely perform any of Borrower's
obligations under this Agreement;
(c) Unless approved in writing by the City and subject to Section 5.1, the
Borrower voluntarily or involuntarily sells, transfers, disposes of or further encumbers all
or any portion of its interest in the Development or the Property;
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(d) A default has been declared by another lender under any loan secured by a
deed of trust on the Development;
(e) Any representation or warranty contained in, or made in connection with the
execution and delivery of this Agreement, or in any certificate or statement furnished
pursuant hereto, shall prove to have been incorrect when made in any material respect;
(f) Borrower defaults in the performance of any other term, covenant, or
agreement contained in this Agreement, the Promissory Note or Assignment
Agreements;
(g) 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 (a "Bankruptcy
Law"): (A) Borrower (i) commences a voluntary case or proceeding, (ii) consents to the
entry of an order for relief against it in an involuntary case, (iii) applies for or consents to
the appointment of a trustee, receiver, assignee, liquidator or similar official, (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; or (B) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (a) is for relief against Borrower in an
involuntary case, (b) appoints a trustee, receiver, assignee, liquidator or similar official
for Borrower or substantially all of Borrower's assets, (c) orders the liquidation of
Borrower, or (d) issues or levies a judgment, writ, warrant of attachment or similar
process against the Property or any other property of Borrower, and in each case the
order or decree is not released, vacated, dismissed or fully bonded within 60 days after
its issuance; and
(i) Any final judgment for the payment of money that is not fully covered by
liability insurance is rendered against Borrower and is not discharged within thirty (30)
days, or if the execution of such judgment is stayed pending appeal but is affirmed on
such appeal, such judgment is not discharged within thirty (30) days following such
affirmation.
4.2 Remedies of the City upon Default. Ul~on the occurrence of an event of default by
the Borrower in the performance of this Agreement, the Promissory Note or the
Assignment Agreements, the City shall have the following rights, in addition to the City's
other rights and remedies provided by law:
(a) The City may declare the entire outstanding principal balance of the Loan
immediately due and payable;
(b) The City shall have full power to exercise any and all rights and powers granted
to the City pursuant to the Promissory Note, this Agreement and the Assignment
Agreements in the event of a default; and
(c) The City may terminate this Agreement.
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Each of the remedies provided herein is cumulative and not exclusive of, and shall not
prejudice any other remedy provided herein or in the Promissory Note or the
Assignment Agreements. The City may exercise from time to time any rights and
remedies available to it under applicable law, in addition to, and not in lieu of, any rights
and remedies expressly granted in this Agreement or in any other instrument or notice,
demand or legal process of any kind.
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
Agreements on the basis of the same or a similar breach of a covenant or warranty or
other event of default.
SECTION FIVE: GENERAL PROVISIONS
5.1 Assignment, Transfer, and Encumbrance. The Loan shall not be assigned nor
shall Borrower transfer or encumber its interest in the Property or the Development
without the prior written consent of the City. The City shall not withhold its consent to
the following assignments of the Loan, transfers of interest, and encumbrances: (i) a
transfer from Borrower to a nonprofit corporation which is under the direct control or
under the common control of Borrower ("6ontrolled Affiliate"); (ii) a transfer from
Borrower to a limited partnership in which Borrower or a Controlled Affiliate is the
general partner ("Borrower Limited Partnership"); (iii) transfer of the initial limited
partner's interest in a Borrower Limited Partnership to an investor limited partner, (iv) a
transfer of the general partner's interest in a Borrower Limited Partnership to a
Controlled Affiliate; (v) a transfer from a Borrower Limited Partnership to Borrower or a
Controlled Affiliate; and (vi) the encumbrances securing loans for the Development that
have been approved by the City; provided that prior to any of the foregoing transfers,
Borrower shall deliver to City a copy of the transferee's and assignee's organizational
documents and the final form of the assignment and assumption agreement
effectuating such transfer.
5.2. Insurance. Borrower shall maintain and keep in force, at Borrower's expense,
insurance of the types and in amounts customarily carried by organizations similar to
Borrower, including but not limited to fire, liability, property damage, automobile and
worker's compensation, provided by companies and in form and amounts satisfactory to
City with the City named as "Loss Payee" and "Additional Insured." Without limiting the
generality of the foregoing, Borrower shall at all times maintain the following policies of
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insurance:
(a) if the term of this Agreement and/or the Promissory Note extends to cover
any construction of the Development, property "all risk" insurance covering the full
replacement value of the improvements located on the Property, containing a "full
replacement cost" endorsement, and naming the City as "loss payee";
(b) commercial general liability insurance in favor of Borrower (and naming the
City as additional insured) in an aggregate amount not less than $1,000,000, combined
single limit (or such greater amount as may be specified by the City from time to time);
· (c) Comprehensive Automobile Liability insurance with limits not less than
$1,000,000 each occurrence(and naming the City as additional insured); and
(d) such other insurance as may be required by applicable laws (including
worker's compensation and employer's liability insurance) or as the City may
reasonably require 'from time to time.
5.2.1 Certificates of Insurance. 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 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 lime, 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
~3~o~-3 11
1/27/03
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
BORROWER:
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544-1567
Attention: Executive Director
Fax No. (510) 582-6523
5.4 Amendments. This Agreement may be modified only by a written instrument
signed by both 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 Force Majeure. If any predevelopment activity is affected and delayed directly by
fire, earthquake or other acts of God, strike, lockout, acts of public enemy, riot,
insurrection or government regulation of the sale or transportation of materials supplies
or labor, Borrower shall notify the City in writing within ten (10) days :after the event
causing the delay. Such delay shall not affect the maturity date of the Promissory Note.
5.7 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.
5.8 Action by 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
5.9 Non-Liability of City and City Officials, Employees and Agents. 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
613405-3 ~2
1/27/03
which may become due to Borrower or its successor or for any obligation of City under
this Agreement.
5.10 No Third Party Beneficiaries. There shall be no third party beneficiaries to this
Agreement.
5.11 Future City Actions. The Parties acknowledge and agree that:
(a) This Agreement does not constitute City approval of any land use
approvals, entitlements or permits required for construction of the Development
(collectively, the "Land Use Approvals"); and
(b) The City retains full discretion to approve or disapprove the Land Use
Approvals.
5.12 Headings; 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
according to its fair meaning and not strictly for or against any Party. Time is of the
essence in the performance of this Agreement.
5.13 Governing Law. This Agreement, the Promissory Note and the Assignment
Agreements shall be construed in accordance with the laws of the State of California
without regard to principles of conflicts of law.
5.14 Attorneys' 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:
5.15 Severabilityl 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.
5.16 Entire Agreement; Exhibits. This Agreement, together with the Promissory Note
and the Assignment Agreements 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 through D attached
hereto are incorporated herein by this reference.
5.17 Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one agreement.
613405-3 13
i/27/o3
IN WITNESS WHEREOF, the Parties have executed this Agreement'as of'the
date first written above.
EDEN HOUS{~NG, INC.
By: ¢/ ~~
-L-¢nda Mandolini,
Executive Director
CITY OF DUBLIN
Its:
Approved as to form:
City Attorney
6134o5-3 14
1/27/03
Exhibits
A Legal Description
B Form of Promissory Note
C-1 Form of Collateral Assignment of Arohitect's Contract
C-2 Form of Assignment Agreement
D Predevelopment Budget
613405-3 15
1/27/03
Oroer Numue::
Page NurnDer:
'' ~' "' A Tb_e Sout_b_ez:rtmost. l~oz:t.±or~ o£ 'cb_e £o]_:Lo~z±r~g
LEGAL
Reai property in the City of Dublin, .County of Alameda, State Of California, described as follows:
Parcel One:
commencing at the point of intersection of the Southwesterly [ine of Parcel 9 with the
Southeasterly line of Amador Vatiey Boulevard, as said Parcel and Boulevard are delineated and
so designated on that certain Hap entitled "Parcel Nap 52:L" etc., flied December :L7, 1969, in
Book 61 of Naps at Page 89 thereof,~C, ecords of Alameda County, California, and running thence
along said Southeasterly line ofAmador Vaii~y Boulevard No,rtheastedy on the arc of a curve to
the right, tangent at iast said point :o a course which bears .North 22~53'.43~ East (the bearing of
said tangent course bei~' 'taken as North 22°S3'43' East for the purpose of making this
'description), the radius' of which curve is A46'.00 feet, through a central angle of 32~59'11'', a
distance on said arc of 2_56.77 feet to a poir~t thereon, tangent at last said point'to a course
which bears North 55052'54'' East; thenc~ leaving said Southeasterly line of Amador Valley
Boulevard South 36°53'1 t~' East, 100.00 fe~t; thence Southeasterly and Easterly on the arc of a
curve to the' left, tangent to last said course, the radius of which curve' is 100.00 feet, through a
central angle of 47°:~9'36" a distance on said arc of 82.60 feet to a point on a line orawn parallel
with the aforesaid Southwesterly line of Parcel 9, tangent at last said point to a course which
bears South 8A°l_L2'47'' East; thence along said parallel tine South 20°51'45'' East, 197.33 feet;
thence at right angtes South 69°05'~5'' West, 2_98.73 feet to an intersection thereof with said
Southwester!y line of Parcel 9; thence atong said Southwesterly fine North 20°51'45'' West,
229.56 feet to the point of commencement.
Exceptihg therefrom, all oil; gas, minerals and other hydrocarbon substances in and under or that
may be produced from a depth below 500 feet from the surface of said land, without right of
entry upon the surface of said ~and ~or-the purpose o.f mining, drilling, exploring or extracting
such oil, gas, minerals and other hydrocarbon substances or other use pf or rights in or to any
portion of the surf"ace of said land do a depth of 500 feet below the surface thereof, as reserved
in the deed from Volk-lVlc Lain Communites, 1nc., to Qualified ];nvestments, Inc., dated .June 25,
:L967, recorded )une 2_7, ~.967, Instrument No. AZ/60836, Alameda County Records.
Parcet Two:
A perpetual non-exclusive easement and right of way for the construddon, operation, inspection,
maintenance and repair of an underground storm drain sewer .and appurtenances thereto, in,
over, through, and under the following described lands:
A strip ~)f land Of the uniform width of :10.00 feet, the center tine of which is particularly
described as:
Commencing at a point on the southeasterly line of that certain 2.000 parcel of land conveyed by
Boise Cascade Corporation to County of Alameda by deed dated December 21, :~976, and
recorded. December 22, 1976, in Reel 4652 of Official Records at Image 34 thereof (76-2!695~),
Records of Alameda County, California, said point being distant theron South 69° 08' 15" West
(the bearing .of said southeasterly line being taken as South 69° 08' !5" West for the purpose of
making this description), 7.56 feet from the most easterly corner of said 21000 acre parcel of
land,'said southeasterly tine being a!so a northwesterly fine of "Parcel C, "as said'parcel is
delineated and so designated on that certain, map entitled "Parcel Nap 2622" etc., filed
september 25, :L978, in Book 105 of Naps at pages 52. and 53 thereof, Records of Alameda
American ~Tt/~
Order Number: ~.6~.:IO4ALA
Page Number: $
C:ounty, California, and running thence South 20° 51' 45" East, 9.99 feet; thence North 27° 36'
47" East, 146.71 feet; thence North 70° 03' 35" East, 228.71 feet; thence South 80° 25' 12" East,
240.35 feet; thence North 57° 07' 22" East, 50.55 feet to a point on the southwesterly line of.
Amador Plaza Road, 68.00 feet in width, said point being distant along said southwesterly line of
Amador Plaza Road, South 32° .52' 38" East, 100.33 feet from the corner common to "Parcel A"
and "Parcel B," as shown on the aforesaid Parcel Nap 2622.
The sidelines of said strip of land shall be lengthened or shortened so as to intersect with the
aforesaid southeasterly line of said 2.000 acre parcel of land (76-2t69.59) and the aforesaid
southwesterly line of Amador Plaza Road, and being portions of Parcels A, B, and C, as said
parcels are shown on the aforesaid Parcel Hap 2622, as conveyed from Dublin Associates, a
California General Partnership to the County of Alameda, by Grant recorded January 26, 1979,
Series No. 79-017401, Alameda County Records.
APN: 941 -0305-012-02
F/mt American 77t1~
(Exhibit B to LOan Agreement)
PROMISSORY NOTE
$280,000 Dublin, California
i-%~-,~.~ ¢' , 2003
FOR VALUE RECEIVED, Eden Housing, Inc., a California nonprofit public
benefit corporation ("Borrower"), promises to pay to the City of Dublin, a public body
corporate and politic ("City"), in lawful money of the United States of America, the
principal sum of Two hundred, eighty thousand Dollars ($280,000) or so much
thereof as may be advanced by City from time to time pursuant to the Loan
Agreement referred to below, together with interest on the outstanding principal
balance at an annual rate equal to five percent (5%) per annum, in the manner
provided below. Interest shall be calculated on the basis of a year of 365 days, and
charged for the actual number of days elapsed.
This promissory note (this "Note") has been executed and delivered pursuant
to and in accordance with the terms and conditions of the 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.
1. PAYMENTS
1.1 MATURITY DATE. The entire principal balance outstanding
under this Note, together with interest accrued thereon, shall be due and payable in
one lump sum on the fifth (5th) anniversary of the date first written above ("Maturity
Date") unless the City forgives this Note pursuant to the terms and conditions set
forth in Section 1.4.3 of the Loan Agreement; provided however, the Parties agree
that if the City provides construction and/or permanent financing for the Development
prior to the Maturity Date, the outstanding balance of the Loan shall be repaid with
the proceeds of such financing on the date such financing is provided.
1.2 PREPAYMENTi Borrower may, without premium or penalty, at
any time and from time to time, prepay all or any portion of the outstanding principal
balance due under this Note, provided that each such prepayment is accompanied
614451-2
1-27-03
by accrued interest on the amount of principal prepaid calculated to the date of such
prepayment. PrePayments shall be applied first to any unpaid late charges and
other costs and fees then due, then to accrued but unpaid interest, and then to
principal. 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 and interest 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 writin§.
2. DEFAULTS
2.1. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an event of default hereunder ("Event of
Default"):
(a) If Borrower shall fail to pay when due the principal and
interest payable hereunder and such failure continues for fifteen (15) days after City
notifies Borrower thereof in writing.
(b) If, pursuant to or within the meaning of the United States
Bankruptcy Code or any other federal or state law relating to insolvency or relief of
debtors ("Bankruptcy Law"), Borrower 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) If 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) 'If Borrower sells, transfers, conveys or assigns,
hypothecates, rents, leases or licenses the Development or the Property, or any part
thereof or interest therein without prior written consent.of City except as may be
expressly permitted pursuant to the Loan Agreement.
(e) If Borrower shall default in the performance of any other
term or covenant contained in the Loan Agreement and such default remains
uncured following the expiration of any applicable cure period.
2.2. NOTICE BY BORROWER. Borrower shall notify City in writing
within five days after the occurrence of any Event of Default of which Borrower
acquires knowledge.
614451-2
1-27-03
2.3. 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'
fees, incurred in connection with City's enforcement of this Note and the exercise of
any or all of its rights and remedies hereunder.
2.4. DEFAULT RATE. During any time that Borrower is in default
under this Note, interest shall automatically be increased without notice to 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, and the interest rate shall once again
be the rate specified in the first paragraph of this Note. Notwithstanding the
foregoing provisions, if the interest rate charged exceeds the maximum legal rate of
interest, the rate shall be the maximum rate permitted by law. The imposition or
acceptance of the Default Rate shall in no event constitute a waiver of a default
under this Note or prevent City from exercising any of its other rights or remedies.
3. MISCELLANEOUS
3.1. WAIVER. 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. To the
maximum extent permitted by applicable law (a) no claim or right of City arising out
of this Note can be discharged by City, in whole or in part, by a waiver or
renunciation of the claim or right unless in a writing, signed by City; (b) no waiver that
may be given by City will be applicable except in the specific instance for which it is
given; and (c) 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.
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.
6~445%2 3
1-27-03
3.4 GOVERNING LAW. This Note shall be governed by the laws of
the State of California without regard to principles of conflicts of laWs. All persons
and entities in any manner obligated under this Note consent to the jurisdiction of
any federal or state court within California having proper venue.
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.
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
.,,~'"'//Lind~ Mandolini
(~..? Exeoutive Director
614451-2 4
1-27-03
Exhibit C-1 to Loan Agreement
COLLATERAL ASSIGNMENT OF ARCHITECT'S CONTRACT
FOR VALUE RECEIVED, as of the ~ day of ,2003, Eden
Housing, Inc., a California nonprofit public benefit corporation ("Assignor") hereby
assigns to the City of Dublin, a public body corporate and politic ("Assignee" or "City")
and grants to Assignee a security interest in, all of Assignor's right, title and interest in
and to that certain contract dated as of ,20 ("Architect's
Contract") between Assignor and Chris Lamen + Associates (the "Architect") relating
to architectural services for the construction of a senior housing development consisting
of approximately 50 residential units (the "Project") to be located at , in
Dublin, California.
In addition, the parties hereto agree as follows:
1. This Collateral Assignment of Architect's Contract (hereinafter, this
"Assignment" or this "Agreement") ) is made as security for the (a) payment to the City
of all sums now or hereafter owing under the Promissory Note dated as of the date
hereof made by Borrower for the benefit of City, and any and all additional advances,
modifications, extensions, renewals and amendments thereof; and (b) payment and
performance by Borrower of all its obligations under that certain Predevelopment Loan
Agreement dated as of ,2003 (the "Loan Agreement") between
Assignor and Assignee.
2. Unless an event of default (as defined in the Loan Agreement) shall have
occurred and be continuing beyond the expiration of all applicable cure periods,
Assignor shall be entitled (subject to the provisions of Section 7 below) to enjoy and
enforce all of its rights under the Architect's Contract. If such an event of default shall
occur and be so continuing and Assignee shall give written notice to Architect
specifically referring to this Assignment and stating that such an event of default has
occurred and is continuing beyond the expiration of all applicable cure periods, and that
Assignee intends to exercise its rights hereunder (an "Exercise Notice"), then Assignee
shall be entitled thereafter to enjoy and enforce all of the rights of Assignor under the
Architect's Contract and shall become bound to perform all future obligations of
Assignor thereunder, it being understood that in no event shall Assignee be liable for
payments or costs relating to any work which Architect had performed prior to the date
of Assignee's delivew of such Exercise Notice. Unless and until such Exercise Notice is
given, Assignee shall not be obliged to perform any of the obligations of Assignor under
the Architect's Contract. Assignor agrees that Architect shall rely conclusively upon any
Exercise Notice given by Assignee to Architect without further inquiry on the part of
Architect and agrees that, until further notice is given by Assignee to Architect, Assignee
may exercise all of its rights hereunder. Architect, by its signature below, agrees to be
bound by any such Exercise Notice.
614374-2
3. If Assignor defaults in making any required payment or in performing any
other obligation under the Architect's Contract, and Architect deems such to be a default
under the Architect's Contract, Architect shall give prompt written notice thereof to
Assignee. Unless and until such notice is given to Assignee, and for a period of 15
business days thereafter, Architect shall not exercise any of its rights or remedies
against Assignor under the Architect's Contract (including, without limitation, the right to
terminate the Architect's Contract or to stop work thereunder). After such notice is
given and for a period of 15 business days thereafter, Assignee 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, Architect shall continue performance under the
Architect's Contract.
4. BY its execution hereof, Architect agrees to look solely to Assignor, its
successors and assigns for performance of Assignor's obligations under the Architect's
Contract unless and until it shall have received an Exercise Notice from Assignee. ~
5. Notwithstanding any other provision contained in the Architect's Contract,
Architect consents to the foregoing assignment and agrees that, after the occurrence of
an event of default and the giving of an Exercise Notice by Assignee, Architect will
perform all of its obligations under the Architect's Contract, Assignee being liable to pay
the costs thereof relating to any services performed at the direction of Assignee after
the giving of the Exercise Notice. However, Assignee is not and will in no event
become liable for any costs, charges, expenses and liabilities incurred under the
Architect's Contract or otherwise unless it has given the Exercise Notice (and, if it has
given the Exercise Notice, Assignee 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 Architect as a defense to its obligations to
perform services for Assignee as set forth herein.
6. 'Architect hereby agrees that, notwithstanding anything hereinabove
contained.or contained in the Architect's Contract to the contrary, Assignee will have the
right to receive and to use (without cost to Assignee) any and all plans, specifications,
drawings, renderings and other materials for the Project, as the same may be amended
or modified from time to time, which Architect may own or have the right to use and to
grant others the right to use. Architect further agrees that, upon the written request of
Assignee (whether or not any Event of Default has occurred), it will execute and deliver
a.certification confirming Assignee's rights with respect to such plans, specifications and
drawings as Assignee from time to time may reasonably request.
7. Assignor and Architect each represent and warrant that the Architect's
Contract is in full force and effect, that it has not been modified in any respect, and that
to the knowledge of each of them there are no defaults thereunder by either party
thereto. Assignor and Architect further represent and warrant that neither of them has
made any assignment of the Architect's Contract or its respective rights thereunder
(other than to Assignee) and each of Architect and Assignor agrees not to make or
614374-2
suffer any future .assignment or encumbrance of such rights absent the written consent
of Assignee. Assignor and Architect further agree that they will not amend the
Architect's Contract (except pursuant to change orders and other amendments
expressly permitted by any disbursement agreement to which Assignee is a party or to
which Assignee has consented) without the prior written consent of Assignee, nor will
the Architect's Contract be terminated except for default of Assignor continuing after the
15-day notice and cure period described above.
8. Architect represents to Assignee that all sums due and owing to Architect
to date under the Architect's Contract have been duly paid in full, except to the extent
deferral of such sums is allowed pursuant to the Architect's Contract.
9. Assignee may assign its rights under this Assignment and the Architect's
Contract, and the rights and obligations of such assignee and Architect shall be the
same as provided herein as to Assignee and Architect. Assignee may, in its discretion,
make any such assignment to any City agency, and may make any such assignment to
a third party, with the consent of Consultant, which consent shall not be unreasonably
withheld, conditioned or delayed. This agreement shall be binding upon and shall inure
to the benefit of the successors-in-interest of Assignor and Assignee.
10. This Assignment shall not be deemed to release or affect in any way the
obligations of Assignor to Architect under the 'Architect's Contract.
1 1. Architect hereby waives all provisions in the Architect's Contract which
would impair, hinder or prevent the making of the assignment by Assignor or the
enforcement thereof by Assignee.
12. Architect is executing this Assignment to induce Assignee to make the
Loan described in the Loan Agreement, and A~chitect understands that Assignee would
not do so but for Architect's execution and delivery of this Assignment.
13. Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Assignment 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;
614374-2 ,.~
(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 of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Fax No. (925) 829-9248
BORROWER:
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544-1567
Attention: Executive Director
Fax No. (510) 582-6523
ARCHITECT:
Chris Lamen + Associates
869 '%" Fourth Street
San Rafael, CA 94901
Attention: Chris Lamen
Fax No. (415) 456-6525
14. Governing Law. This Assignment Agreement shall be construed in
accordance with the laws of the State of California without regard to principles of
conflicts of law.
15. Attorneys' Fees. If any claim is made hereunder at law or otherwise by any
party, the prevailing party or the nondefaulting party, as the case may be, shall be
entitled to its costs and reasonable attorneys' fees.
16. severability. 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
614374-2
parties are materially altered or abridged by such invalidation, voiding or
unenforceability
17. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one
agreement.
18. Amendments. This Agreement may be modified only by a written instrument
signed by both Parties.
19. 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.
20. Action by 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
21. Non-Liability of City and City Officials, Employees 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 Agreement.
22. No Third Party Beneficiaries. There shall be no third party beneficiaries to
this Agreement.
23. Headings; 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 according to its fair meaning and not strictly for or against any Party. Time is of
the essence in the performance of this Agreement.
614374-2 5
IN WITNESS WHEREOF, Assignor, Assignee and Architect have duly executed
this Assignment, as of the date first above written.
ASSIGNOR:
EDEN HOUSING, INC.
By:
Name:
Title:
ASSIGNEE:
CITY OF DUBLIN
By:
Name:
Title:
Approved as to form:
City Attorney
ARCHITECT:
By:.
Name:
Title:
614374-2
Exhibit C-2 to Loan Agreement
ASSIGNMENT OF AGREEMENTS, PLANS, SPECIFICATIONS,
AND APPROVALS
FOR VALUE RECEIVED, effective as of the __ day of ., 2003,
Eden Housing, Inc., a California nonprofit public benefit corporation ("Assignor") hereby
assigns to the City of Dublin, a public body corporate and politic ("City") and grants to
City a security interest in all of Assignor's right, title and interest in and to all of the.
following (which hereafter shall collectively be referred to as the "Assigned
Documents"):
(A) All architectural, design, engineering, consulting and construction
contracts and development agreements, 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 or the Development;
(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, its
agents, employees or any Contractor with respect to the Property or the
Development; and
(C) All land use approvals, building permits, and other governmental
approvals of any nature obtained for the Development (collectively, the
"Land Use Approvals").
In addition, the parties hereto agree as follows:
1. This Assignment of Agreements, Plans, Specifications and Approvals (this
"Assignment Agreement") is made pursuant to the terms of that certain
Predevelopment Loan Agreement entered into by and between Assignor and the City
dated as of the date hereof (the "Loan Agreement"). Capitalized terms used but not
defined in this Assignment Agreement shall have the meanings 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 Pr°missory Note dated as of the date hereof
made by Assignor for the benefit of City, and any and all additional advances,
614788-1
1-20-03
modifications, extensions, renewals and amendments thereof; and (b) payment and
performance by Assignor of all its Obligations under the Loan Agreement.
3. Assignor hereby irrevocably appoints City as its attorney-in-fact (which
agency is coupled with an interest) to, upon the occurrence of default or an event which,
with notice or the passage of time or both would constitute a default under the Loan
Agreement, 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 represents and warrants to City that no previous assignment of
its 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 (without
Prior written approval of the City) its rights or interest in any of the Assigned Documents
to any entity other than a lender whose loan is secured by the Development with the
prior written approval of the City.
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.
6. Unless an event of default (as defined in the Loan Agreement) shall have
occurred and be continuing beyond the expiration of all applicable cure periods,
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 shall
occur and be so continuing and City shall give written notice to any Contractor who is a
party to any such ASsigned Document specifically referring to this Assignment and
stating that such an event of default has occurred and is continuing beyond the
expiration of all applicable cure periods 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 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 had 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 Assignor's knowledge 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,
614788-1 2
1-20-03
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
same as provided herein as to City and Contractor. City may, in its discretion, make
any such assignment to any City agency, and may 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 make
the Loan described in the Loan Agreement, and Assignor understands that City would
not do so but for Assignor's execution and delivery of this Assignment.
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 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.
614788-1
1-20-03
CITY:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Fax No.' (925) 829-9248
ASSl6NOR:
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544-1567
Attention: Executive Director
Fax No. (510) 582-6523
13. Amendments. This Assignment Agreement may be modified only by a
written instrument signed by both Parties.
14. Further Assurances; Consents. 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. Without limiting the generality of the foregOing, Assignor
agrees to obtain from each Contractor and deliver to City a duly executed Consent
substantially in the form attached hereto as Exhibit A.
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 by 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
17. Non-Liability of City and City Officials, Employees 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 A§reement.
614788-1 4
1-20-03
19. Headings; 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. Governing Law. This Assignment Agreement shall be construed in
accordance with the laws of the State of California without regard to principles of
conflicts of law.
21. Attorneys' 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. Severability. 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. Entire Agreement; Exhibits. This Assignment Agreement, together with the
Collateral Assignment of Architect's Contract of even date herewith, the Consents which
are hereby incorporated herein by this reference, the Loan Agreement and the
Promissory Note 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.
24. 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.
614788-1
1-20-03
IN WITNESS WHEREOF, Assignor and City have duly executed this Assignment
Agreement effective as of the date first above written.
ASSIGNOR:
EDEN HOUSING, INC.
By:
Name:
Title:
CITY:
CITY OF DUBLIN
By:
Name:
Title:
614788-1
1-20-03
Exhibit A
CONSENT
This Consent.is executed effective as of .., 2003, pursuant to that
certain Assignment of Agreements, Plans, Specifications, and Approvals ("Assignment
Agreement") executed by and between Eden Housing, Inc., a California nonprofit public
benefit corporation ("Assignor") and the City of Dublin, a public body corporate and
politic ("City") dated as of ,2003. Except as otherwise defined herein, the
terms used herein shall have the meanings given them in the Assignment Agreement.
The undersigned architect, engineer, 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 otherwise 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,
614788-1 '7
1-20-03
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 or the Development, as the same may be amended or modified from
time to time, which 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 performing 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
performance 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 Development with the prior written approval of the City.
Dated as of the date first written above.
CONTRACTOR
By: Contractor's Address:
'Its: Telephone:
Facsimile:
614788-1 8
1-20-03
DUBLIN SENIOR HOUSING
Predevelopment Budget
EXHIS T'
PREDEV
o ~ · i~.~ ~ ~ LOAN
BUDGE~ To TCAC SubmiEal
LAND & IMPROVEMENTS: 0
Site A~uisition 0
Relo~tion
Site Demolition 0
Site Maintenan~ (i.e. Secufi~, Clean-Up) 0
Site Value Beyond Cost 0
Total Land & Improv 0
CONSTRUC~ON CONSULTANTS:
Amhitect & Engineering 109,650
Construction Management Sewices 15,000
Engineering Repo~s (i.e. Topo, Acoustic, Soit~ Repod) 15,000
Environmental 5,000
Testing & inspection
Total Constr Consult ~,650
CONSTRUCTION: 0
Off-Site improvements 0
On-Site improvements 0
Podium Structure
Unit Construction 0
Joint Trench + E~ras 0
Contractors Bond 0
Furniture, Fixtures & Equipment (common area) 0
Construction Contingency 0
Total Constr
SOFT COSTS:
Permits & Fees 50,000
Legal Fees 6,000
~udit Fees 0
Sponsor Administration 37,500
SponsodGP Contribution 0
Sponsor Net Wo~h Requirement
Sponsor Operating Guarantee 0
Market Study 7,500
0
Consultant Fees-Other 0
Se~ices Rese~e 0
Leasing and Other Rese~es: 0
Ren~Up Marketing 0
TCAC Rese~es
Initial Project Rese~es
Soft Costs Contingency 15,000
Total Indirect Costs 116,000
~FINANCE & CARRYING COSTS:
Liabili~/COC Insurance 1,000
7~es 0
Construction Loan Points 0
Permanent Financing Points 5,000
AHP Points 0
Acquisition Loan Fees 0
Interim Acquisition Loan Interest 0
Title, Escrow & Other Financing Fees 0
Lender-Appraisal, Legal & Consulting 0
Construction Loan Interest 0
Total Fin & Oarw Costs 6,000
TAX CREDITS/SYNDICATION EXPENSES:
Tax Credit Expenses: 0
TCAC Application Fee 2,000
TCAC Rese~ation/Allocation Fee 0
TCAC Deposit 0
TCAC Monitoring Fee 0
TCAC Deposit Refund 0
Syndication Consultant 7,500
Syndication Legal Fees 3,000
0
Syndi~tion-lnvestor Legal 0
Syndication Other: Bridge Loan Fees
Syndi~tion Other: Bddge Loan/Dev Fee Interest 0
Total TCAClSy~d 12,~00
TOTAL DEVELOPMENT EXPENSES ~ 279,150
Eden Housing, Inc.
409 Jackson Street
Hayward, CA 94544 1/28/2003 Predev Agr. l-23-03 Exh D.Predev. Budget
(510) 582-1460