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HomeMy WebLinkAbout7.6 Eden Housing AmendmentFile# 600-30 CITY CLERK AGENDA STATEMENT CZTY COUNCIL MEETING DATE: October 2:L 2003 SUBJECT: ATTACHMENT: RECOMMENDATI~ FINANCIAL STATEMENT: Amendment to Predevelopment Loan Agreement, Promissory Note, and Assignment Documents with Eden Housing, Inc. Report Prepared By: Julia Abdala, Housing Specialist Resolution Authorizing Amendment No. 1 to the Predevelopment Loan Agreement with Eden Housing, Inc., Amended Promissory Note and Assignment Documents. Budget Change Form Copy of Agenda Statement from February 4, 2003 on Eden Housing, Inc.'s Predevelopment Loan Agreement with the City of Dublin. Staff recommends that the City Council: 1. Adopt the Resolution authorizing Amendment No. 1 to the Eden Housing, Inc. Predevelopment Loan Agreement, Amended and Restated Promissory Note and Assignment Documents and authorize the Mayor to sign; and 2. Approve Budget Change in order to provide additional funds to disburse money for pre-construction work. Loan and Promissory Note · The initial Predevelopment Loan Agreement: (Approved and appropriated through a Budget Change Form on February 4, 2003) · The amended Predevelopment Loan Agreement: · Total amount of loan, in the Amended and Restated Promissory Note City Budget · Amount of the agreement spent in 2002-2003 · Amount budgeted for 2003-2004 · Needed budget amendment (Budget change form) · Total anticipated predevelopment cost $280,000, $314,560 $594,560 $ 88,199.12 $ 44,75O $461,610.88 $594,560 COPIES TO: In-House Distribution F:XD°cuments fr°m °Id c°mputer~Agreements & Staff Rpts\CC Staff Rep°rt Eden Predev L°an 102103 (Richs)'DOC/ ~6 ITEM NO. DESCRIPTION: On September 23, 2002 the City Council selected Eden Housing, Inc. to proceed with the development of affordable senior housing at the site of the former library. This site will also house a senior center to be constructed during 2003-2004. On February 4, 2003 the City Council approved a Predevelopment Loan Agreement with Eden Housing, Inc. for $280,000 to begin pre-construction work on the Dublin Senior Housing Project. 'This funding was available t.o Eden Housing, Inc. through the Tax Credit Allocation Committee (TCAC) application in July. At this time Eden Housing, Inc. is requesting additional funds to continue working on pre-construction through the actual date when the development begins construction, now anticipated to be in February 2004. An additional sum of $314,560 is needed for a total predevelopment loan amount of $594,560. This amendment to the Predevelopment Loan Agreement would reauthorize the Predevelopment Loan Agreement between Eden Housing, Inc. and the City of Dublin to provide financing to complete all construction documents prior to issuance of a building permit, to pay the various specialists in selling the tax credits and provide for the other costs of pre-construction work on this project. Analysis Eden Housing, Inc's. tax credit application was successful and on September 29, 2003 the developer was awarded tax credits to provide financing for the Dublin Senior Housing project. Eden Housing, Inc. must now begin in earnest to work toward a construction date no later than February 25, 2004 in order to be able to retain the use of the allocated tax credits. Providing additional predevelopment funds would allow them to proceed at a quickened pace. Eden Housing is requesting an additional $314,560 to the Predevelopment Loan Agreement. The total of the original Agreement and the Amended Agreement may not exceed $594,560. These funds will be paid back to the City of Dublin, on closing of construction loan, with 5% interest. As indicated in the body of the initial Loan Agreement the funds will still be disbursed to Eden Housing on a reimbursement basis only, based on the line items submitted with the budget, Exhibit A to the Amended Predevelopment Loan Agreement. CONCLUSION The original Predevelopment Loan Agreement provided funds only until Eden Housing, Inc. submitted the tax credit application. Because the tax credits were awarded and Eden Housing must now begin construction by February 25, 2004 it is necessary that the developer be able to access additional funds made available through a Amended Predevelopment Loan Agreement. The attached Amendment would allow this money to be spent in preparing for construction. RECOMMENDATION: Staff recommends that the City Council: 1. Adopt the Resolution authorizing Amendment No. 1 to the Eden Housing, Inc. Predevelopment Loan Agreement, Amended and Restated Promissory Note and Assignment Documents and authorize the Mayor to sign; and 2. Approve Budget Change in order to provide additional funds to disburse money for pre- construction work. RESOLUTION NO. - 03 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AUTHORIZING AMENDMENT NO. 1 TO THE 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 the senior center will serve a public purpose; and WHEREAS, the City Council selected Eden Housing, Incorporated to develop affordable senior housing at 7606 Amador Valley Boulevard; and WHEREAS, Eden Housing, Inc. will need funds to prepare for construction utilizing awarded 9% tax credits; and WHEREAS, it is now necessary for Eden Housing, Incorporated to secure additional funds to continue 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, approves Amendment No. 1 to the Predevelopment Loan Agreement with Eden Housing, Incorporated in the amount of Three hundred, fourteen thousand, five hundred and sixty dollars and no cents ($314,560), attached hereto as Attachment lA for the purposes of predevelopment work on a senior housing project at 7606 Amador Valley Boulevard and authorizes the Mayor to execute such document substantially in the form attached hereto. FURTHER RESOLVED that the City Council approves the Amended and Restated Promissory Note for a total of Five hundred Ninety-Four Thousand, Five Hundred and Sixty Dollars ($594,560), attached hereto as Attachment 1B. FURTHER RESOLVED that the City Council approves the Amendment to Collateral Assignment of Architect's Contract attached hereto as Attachment 1 C, and Amendment to Assignment of Agreements, Plans, Specifications and Approvals attached hereto as Attachment 1 D, and authorizes the Mayor to execute such documents substantially in the forms attached hereto. ATTACHMENT 1 PASSED, APPROVED, AND ADOPTED this 21 th day of October 2003. AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk ATTACHMENT 1 AMENDMENT NUMBER 1 TO PREDEVELOPMENT LOAN AGREEMENT This Amendment to Predevelopment Loan Agreement (this "Amendment") is entered into effective as of ,2003, ("Effective Date") by and between Eden Housing, Inc., a California nonprofit public benefit corporation ("Borrower") and the City of Dublin, a public body, corporate and politic ("City"). Borrower and City are hereafter collectively referred to as the Parties. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Loan Agreement (as defined below). WHEREAS, the Parties entered into that certain Predevelopment Loan Agreement dated as of February 4, 2003 ("Loan Agreement") pursuant to which the City agreed to provide a loan ("Loan") to Borrower in the maximum principal amount of Two Hundred Eighty Thousand Dollars ($280,000) for the purpose of funding certain activities undertaken in connection with the development of affordable housing for Iow- income senior households (the "Project"); WHEREAS, to secure repayment of the Loan, Borrower executed and delivered to City a Collateral Assignment of Architect's Contract and an Assignment of Agreements, Plans, Specifications and Approvals (collectively, "Assignment Agreements"); WHEREAS, Borrower has requested, and City has agreed to increase the maximum principal amount of the Loan by the additional sum of [Three Hundred Fourteen Thousand Five Hundred and Sixty Dollars ($314,560) to a total of Five Hundred Ninety-Four Thousand Five Hundred and Sixty Dollars ($594,560)] in order to fund additional Project development activities through the date of closing for construction financing for the Project; WHEREAS, to reflect the foregoing increase in the amount of the Loan, concurrently with this Amendment: (i) Borrower shall execute an Amended and Restated Promissory Note ("Restated Note"), and (ii) Borrower and City shall execute an amendment to each of the Assignment Agreements; and WHEREAS, the Parties desire to amend the Loan Agreement to reflect the foregoing. NOW THEREFORE, in consideration of the mutual covenants of the Parties and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows. 1. Each reference in the Loan Agreement to the Note shall be a reference to the Restated Note as such may be hereafter amended or modified. 2. Each reference in the Loan Agreement to the Assignment Agreements shall be a reference to the Assignment Agreements as amended as the same may hereafter be amended or modified. 666680-1 1 ATTACHMENT lA 3. Upon Borrower's execution and delivery of this Amendment, the Restated Note and the amendments to the Assignment Agreements, and Borrower's satisfaction of the conditions set forth in Section 1.4.1 of the Loan Agreement, the City shall disburse the Loan Proceeds generally in the amounts and for the items set forth in the Budget attached hereto as Exhibit A unless the City Manager or his designee provides written approval for a different use of the funds. 4. All other provisions of the Loan Agreement shall remain unchanged and in full force and effect. 5. This Amendment may be executed in counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same instrument. IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first written above. EDEN HOUSING, INC. By: Linda Mandolini, Executive Director CITY OF DUBLIN By: Its: Approved as to form: City Attorney 666680-1 2 ATTACHMENT lA DUBLIN SENIOR HOUSING Predevelopment / Preconstruction Budget Update - October t5, 2003 I ~I! PREDEV I ~ ,~: ~i ~ PRECONST. i ~,.~. ~ i~6i~i' / TOTAL PREDEV LOAN COMPONENT :BUDGET BUDGET To TCAC Submitta To Construction Star Draws to Date 10.15.03 LAND & IMPROVEMENTS: Site Acquisition 0 0 0 Relocation 0 0 0 Site Demolition 0 0 0 Site Maintenance (i.e. Security, Clean-Up) 0 0 0 Site Value Beyond Cost 0 0 0 Total Land & Improv 0 0 0 CONSTRUCTION CONSULTANTS: Architect 8, Engineering 299,043 73,900 225,143 0onstruction Management/Cost Estimating Services 18,000 7,043 10,957 Engineering Reports (i.e. Topo, Acoustics, Soils Report) 12,275 0 12,275 Environmental 7,725 7,725 0 Testing & Inspection 0 0 Total Constr Consult 337,043 88,668 248,375 CONSTRUCTION: Off-Site Improvements 0 0 0 On-Site Improvements 0 0 0 Podium Structure 0 0 0 Unit Construction 0 0 0 Joint Trench + Extras 0 0 0 Contractors Bond 0 0 0 Furniture, Fixtures & Equipment (common area) 0 0 0 Construction Contingency 0 0 0 Total Constr 0 0 0 SOFT COSTS: Permits & Fees 100,000 0 I00,000 Legal Fees 8,000 3,322 4,678 Audit Fees 0 0 0 Sponsor Administration 50,000 37,500 12,500 Sponsor/GP Contribution 0 0 0 Sponsor Net Worth Requirement 0 0 Sponsor Operating Guarantee 0 0 0 Market Study 8,000 8,000 0 Consultant Fees-Other 0 0 0 Services Reserve 0 0 0 Leasing and Other Reserves: 0 0 0 Rent/Up Marketing 0 0 0 TCAC Reserves 0 0 0 Initial Project Reserves 0 0 0 Soft Costs Contingency 16,815 389 16,426 Total Indirect Costs 182,815 49,211 133,604 FINANCE & CARRYING COSTS: Liability/CCC Insurance 1,000 0 1,000 Taxes 0 0 0 Construction Loan Points 0 0 0 Permanent Financing Points 16,016 0 16,016 AHP Points 0 0 0 Acquisition Loan Fees 0 0 0 Interim Acquisition Loan Interest 0 0 0 Title, Escrow & Other Financing Fees 0 0 0 Lender-Appraisal, Legal & Consulting 10,000 2,650 7,350 Construction Loan Interest 0 0 0 Total Fin & Carry Costs 27,016 2,650 24,366 TAX CREDITS/SYNDICATION EXPENSES: Tax Credit Expenses: 0 0 0 TCAC Application Fee 2,000 2,000 0 TCAC Reservation/Allocation Fee 0 0 0 TCAC Deposit 311686 0 31,686 TCAC Monitoring Fee 0 0 0 TCAC Deposit Refund 0 0 0 Syndication Consultant .10,000 300 9,700 Syndication Legal Fees 4,000 0 4,000 Syndication-Investor Legal 0 0 0 Syndication Other: Bridge Loan Fees 0 0 0 Syndication Other: Bridge LoardDev Fee Interest 0 0 0 Total TCAC/Synd 47;686 2,300 45,386 TOTAL DEVELOPMENT EXPENSES I 594,560 ~ 142,829 ~ 451,731 Eden Housing, Inc. 409 Jackson Street Hayward, CA 94544 (510) 582-1460 10/16/2003EXHIBIT TCAC @ 54 predevprecon 10.15.03 AMENDED AND RESTATED PROMISSORY NOTE $[594,560] Dublin, California ,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 [Five Hundred Ninety-Four Thousand Five Hundred and Sixty Dollars ($594,560)] 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 Amended and Restated Promissory Note (this "Note") has been executed and delivered pursuant to and in accordance with the terms and conditions of a Predevelopment Loan Agreement dated as of February 4, 2003, by and between Borrower and City (the "Original Loan Agreement") as amended by an Amendment to Predevelopment Loan Agreement dated as of the date hereof and executed by and between Borrower and City (as so amended, 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, Plans, Specifications and Approvals and a Collateral Assignment of Architect's Contract, each dated as of February 4, 2003 and executed by Borrower as Assignor in favor of City, and each as amended by instrument dated as of the date hereof (as so amended, collectively, hereafter, the "Assignment Agreements"). City shall be entitled to the benefits of the security provided by the Assignment Agreements 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. ATTACHMENT lB 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 balance due under this Note, provided that each such prepayment is accompanied 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 writing. 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. 666688-1 2 ATTACHMENT lB 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. 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 Agreements. 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 666688-1 3 ATTACHMENT lB 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 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 Agreements 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 By: Linda Mandolini Executive Director ATTACHMENT lB AMENDMENT TO COLLATERAL ASSIGNMENT OF ARCHITECT'S CONTRACT This Amendment to Collateral Assignment of Architect's Contract (this "Amendment") is entered into effective as of ., 2003 ("Effective Date") by and between Eden Housing, Inc., a California nonprofit public benefit corporation ("Assignor") and the City of Dublin, a public body, corporate and politic (hereafter "City" or "Assignee"). Assignor and City are hereafter collectively referred to as the Parties. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Assignment Agreement (as defined below).. WHEREAS, the Parties entered into that certain Collateral Assignment of Architect's Contract dated as of February 4, 2003 ("Assignment Agreement") pursuant to which Assignor assigned to City certain rights as security for Assignor's obligations under a Promissory Note executed by Assignor in favor of City and a Predevelopment Loan Agreement by and between Assignor and City, each dated as of the date of the Assignment Agreement; WHEREAS, concurrently with this Amendment, Assignor and City shall execute (i) an Amended and Restated Promissory Note ("Restated Note"), and (ii) an Amendment to Predevelopment Loan Agreement ("Loan Agreement Amendment") each of which shall reflect an increase in the funds loaned to Assignor by City; and WHEREAS, the Parties desire to amend the Assignment Agreement to reflect the foregoing. NOW THEREFORE, in consideration of the mutual covenants of the Parties and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows. 1. Each reference in the Assignment Agreement to the Promissory Note shall be a reference to the Restated Note as such may be hereafter amended or modified. 2. Each reference in the Assignment Agreement to the Predevelopment Loan Agreement shall be a reference to the Predevelopment Loan Agreement as amended by the Loan Agreement Amendment, as the same may hereafter be amended or modified. 3. All other provisions of the Assignment Agreement shall remain unchanged and in full force and effect. 4. This Amendment may be executed in counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same instrument. 1 ATTACHMENT lC 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: 666692-1 2 AMENDMENT TO ASSIGNMENT OF AGREEMENTS, PLANS, SPECIFICATIONS AND APPROVALS This Amendment to Assignment of Agreements, Plans, Specifications and Approvals (this "Amendment") is entered into effective as of ,2003 ("Effective Date") by and between Eden Housing, Inc., a California nonprofit public benefit corporation ("Assignor") and the City of Dublin, a public body, corporate and politic (hereafter "City" or "Assignee"). Assignor and City are hereafter collectively referred to as the Parties. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Assignment Agreement (as defined below). WHEREAS, the Parties entered into that certain Assignment of Agreements, Plans, Specifications and Approvals dated as of February 4, 2003 ("Assignment Agreement") pursuant to which Assignor assigned to City certain rights as security for Assignor's obligations under a Promissory Note executed by Assignor in favor of City and a Predevelopment Loan Agreement by' and between Assignor and City, each dated as of the date of the Assignment Agreement; WHEREAS, concurrently with this Amendment, Assignor and City shall execute (i) an Amended and Restated Promissory Note ("Restated Note"), and (ii) an Amendment to Predevelopment Loan Agreement ("Loan Agreement Amendment") each of which shall reflect an increase in the funds loaned to Assignor by City; and' WHEREAS, the Parties desire to amend the Assignment Agreement to reflect the foregoing. '. NOW THEREFORE, in consideration of the mutual covenants of the Parties and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows. 1. Each reference in the Assignment Agreement to the Promissory Note shall be a reference to the Restated Note as such may be hereafter amended or modified. 2. Each reference in the Assignment Agreement to the Predevelopment Loan Agreement shall be a reference to the Predevelopment Loan Agreement as amended by the Loan Agreement Amendment, as the same may hereafter be amended or modified. 3. All other provisions of the Assignment Agreement shall remain unchanged and in full force and effect. 4. This Amendment maybe executed in counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same instrument. ATTACHMENT 1D IN WITNESS WHEREOF, Assignor and Assignee 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 666699-1 2 CITY OF DUBLIN BUDGET CHANGE FORM CHANGE FORM #: New Appropriations (City Council Approval Required): From Unappropriated Reserves From New Revenues Fund # 380 Budget Transfers: From Budgeted Contingent Reserve (1080-799.000) Within Same Department Activity Between Departments (City Council Approval Required) Other Affordable Housing Fund- Housing Name: Name: Programs - Contract Services 147,051 Account: Account: 380.50500.740.000 Affordable Housing Fund- Housing Name: Name: Programs - Contract Services 315,410 Account: Account: 380.50500.740.000 Name: Name: Account: I Account: Name: Name: Account: Account: Name: Name: Account: Account: Name: Name: Account: Account: Name: Name: Account: Account: Total Total 462,461 Reason for Budget Change: a: to carry forward funds originally anticipated to be spent in 2002-2003 to 2003-2004 for the Eden Senior Affordable Housing Project b: to appropriate additiona funds for construction of the Eden Senior Affordable Housing Project Fin Mgr/ASD: .~~ S~gnature City Manager: Signature Date: Mayor: Posted By: Signature Signature \\Snapserver\pccommon~Forms\budget change form.xls 1 ofl ATT HM Date: Date: ~10/13/2003 3:19 PM CTTY ,CLERK ~I II IILI AGENDA STATEMENT CZTY COUNCZL MEETZNG DATE: February 2003 SUBJECT: ATTACHMENTS: RECOMMENDATION: Predevelopment Loan Agreement with Eden Housing, Inc. Report Prepared By: Julia Abdala, Housing Specialist Predevelopment Loan Agreement and Exhibits Budget Change Form Resolution Authorizing a Predevelopment Loan Agreement with Eden Housing, Inc. Approve Predevelopment Loan Agreement with Eden Housing, Inc., in order to proceed with the pre- construction work necessary for affordable Senior Housing at 7606 Amador Valley Boulevard; Approve Budget Change in order to establish a fund from which to disburse money for the agreement; and Adopt Resolution and authorize the Mayor to sign the Predevelopment Loan Agreement. FINANCIAL STATEMENT: The $280,000 would come from the Affordable Housing/Noise Mitigation Fund. A budget change form would take $280,000 from the Affordable Housing/Noise Mitigation Fund and obligate it toward this loan so that payments may be made to Eden Housing, Inc. as reimbursement for eligible expenses. DESCRIPTION: On September 23, 2002 the City Council selected Eden Housing, Inc. to proceed with the development of affordable senior housing at the site of the current library. This site will also house a senior center to be constructed during 2003-2004. Staffhas been working with Eden Housing to establish a ~iable schedule and to clear the way for the eventual construction at this site. A predevelopment loan agreement would allow for Eden Housing to retain the architect, conduct various studies needed at the site and provide for the application and processing of all site entitlements. All of this predevelopment work is necessary prior to the application for the various funding sources identified in Eden Housing's proposal. To apply for funding from HUD's Section 202 Affordable Senior Housing Program and the 9% Tax Credits the project must be at certain stages of readiness. HUD allows for more predevelopment work COPIES TO: In-House Distribution ITEM NO. ~~t ATTACHMENT after fund commitment; however, tax credits require that the project be ready to begin construction within 150 days after the tax credit reservation is awarded. Analysis The attached Predevelopment Loan Agreement is between Eden Housing, Inc. and the City of Dublin. This Agreement would provide the first phase of financing to prepare the design and provide for the other costs of beginning the preconstmction work on this project. If Eden Housing were successful in obtaining funds, the City would need to provide additional financing. All additional funding requested would be reviewed by the City Council at such time as the funding is needed. The features of this Agreement include the following: 1. The funds obligated in this Agreement will be disbursed to Eden Housing on a reimbursement basis only. 2. The document includes the form of the Promissory Note (Exhibit B), Collateral Assignment of the Architects Contract (Exhibit C-I), Assignment of Agreements, Plans, and Specifications (Exhibit C-2), and Eden Housing's proposed Predevelopment budget (Exhibit D). 3. A clause indicating the loan will be forgiven if, after a period of time, funding cannot be obtained. Restricting Condition The City of Dublin cannot subordinate the land on which the senior housing development will be built. If Eden Housing is successful in obtaining a commitment of funds from HUD's Section 202 Program, several cOnditions will be stipulated. HUD typically requires that all other interests in the property be subordinate to a lien that HUD will place on the development. The subordination typically includes the land that the development is built on. Additionally, tax credit financing similarly creates a syndication Comprised of limited partners, who are the investors in the development, by buying the reserved tax credits. The investors may similarly require that all other interests in the property be subordinate to this investment. The City of Dublin entered into an MOU with the County of Alameda on September 1'5, 1999 for the transfer of ownership of this parcel from the County of Alameda to the City of Dublin. The MOU stipulated that this land would only be used for public purposes for a period of 50 years. If the City of Dublin were to subordinate the fee title to the land the possibility would then exist, however remote, that the land could be transferred in a foreclosure, to another entity. The City may lose control of the use of this section of the parcel and may not be able to stipulate that the land continue to be used only for a public purpose. Therefore, the City of Dublin cannot enter into an agreement that requires the subordination of the fee title to the site. The inability o~: the City of Dublin to subordinate the land on which the senior housing development will be built may limit the type and amount of financing that will be available to this project. Although this is an issue that may cause financing difficulties, Eden Housing Inc. continues to be interested in developing the project. Additionally, Eden Housing Inc. will be sending a letter to HUD explaining the restrictions on the City of Dublin and seeking a determination on how this matter could be resolved. If Eden Housing obtained a reservation of tax credits this issue would need to be approached when the investors were sought. CONCLUSION Staffhas reviewed Eden Housing's request for funding and determined that this funding could best be accommodated through a predevelopment loan. At this time, the loan would be unsecured, except for the Architects Contract (Exhibit C-l) and other work products (Exhibit C-2) produced by Eden Housing. Because there is no building yet, there is no development by which the loan could be secured. Eden Housing's predevelopment budget (Exhibit D) was also reviewed and all costs listed were reasonable and represent the probable costs that would be sustained in preparing a site for development and the funding applications. The budget proposed by Eden Housing is broken down into the following categories: · Land and Improvements · Construction Consultants · Construction · Soft Costs · Finance & Carrying Costs · Tax Credit/Syndication Expenses Within each category is a presumed mount that would be necessary in order to accomplish those particular tasks. The budget indicates that $279,150 would be sufficient to carry Eden Housing through to the submittal of a May SectiOn 202 application and a July tax credit application. Staff rounded this amount to $280,000. Since the City would be disbursing the funds only on a reimbursement basis, if there were surplus money at the time the tax credit application is submitted, it would revert to the Affordable Housing/Noise Mitigation fund. If the project does not proceed because of the inability to secure funding, the predevelopment loan would be forgiven. The agreement allows two years for Eden Housing, Inc. to obtain funding commitment and five years for Eden Housing to begin construction. If funding were received the loan would be paid back to the City with 5% interest. RECOMMENDATION: Staff recommends that the City Council approve the attached Predevelopment Loan Agreement with Eden Housing, Inc. in order to proceed with the pre-construction work necessary for affordable Senior Housing at 7606 Amador Valley Boulevard; approve the attached Budget Change in order to establish a fund from which to disburse money for the agreement, and adopt the attached resolution and authorize the Mayor to sign the Predevelopment Loan Agreement. G:\HOUSING\Senior Housing. Senior Cgnmr\CC Staff Report. Eden Predev.Loan.3(Eddie's).DOC PREDEVELOPMENT LOAN AGREEMENT This Predevelopment Loan Agreement (this "Agreement") is entered into effective as of ,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 ~. 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 ($~) (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 613405-3 1/27/03 ATTACHMENT 1 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 dghts 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 Secti°n 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. .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 613405-3 1/27/03 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, withoutlimitation, an Alameda County HOME loan, an additional City Ioanl 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 newly-formed 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 613405-3 1/27/03 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 practical 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. 613405-3 1/27/03 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: 'q'he 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 sha] 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, marita status, familial status, national odgin 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: 613405-3 1/27/03 5 "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 613405-3 6 1/27/03 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 ali 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 613405-3 1/27/03 7 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 dght, 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 acC°unting 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 notice 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 ali or any portion of its interest in the Development or the Property; 613405-3 1/27/03 8 C,r ~ (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. Upon 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. 613405-3 1/27/03 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 ("Controlled 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 6~3405-3 10 1/27/03 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 Cancel(ation, 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 613405-3 ]-]- ' 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 6134o5-3 12 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 Par~y 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 Severability. 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 1/27/03 13 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. EDEN HOUSING, INC. ~lcCnda~andolini, Executive Director CITY 0~ D U B L! N~~,6~,,,~. /? . 4 / Approved as to form: Cit~ Attorney 613405-3 1/27/03 14 Exhibits A Legal Description B Form of Promissory Note C-1 Form of Collateral Assignment of Architect's Contract C-2 Form of Assignment Agreement D Predevelopment Budget 613405-3 1/27/03 15 EXH E T A Order Number: 161104ALA Page Number: 4 The Southe'rn most portion of the following parcels: LEGAL DESCRIPTION Real 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 line of Parcel 9 with the Southeasterly line of Amador Valley Boulevard, as said Parcel and Boulevard are delineated and so designated on that certain Map entitled "Parcel Map 521" etc., filed December '17, 1969, in Book 61 of Maps at Page 89 thereof,-Records of Alameda County, California, and running thence along said Southeasterly line of Amador Valley Boulevard Northeasterly on ~he arc of a curve to the right, tangent'at I"ast said point to a course Which bears North 22°53'43;'- East (the bearing of said tangent course beii~ taken as North 22053'43.' East for the purpose of making this description), the radius of which, curve is 446]00 feet, through a central angle of 32°59'11'', a distance on said arc of 256.77 feet to'a point thereon, tangent at Iast said pointto a course which bears North 55052'54" East; thence leaving said Southeasterly line of Amador Valley Boulevard South 36°53':[~.'' East, 100.00 fe~t; thence Southeasterly and Easterty 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 47019'36'' a distance on said arc of 82.60 feet to a point on a line drawn paratiet with the aforesaid Southwesterly tine of Parcel 9, tangent at last said point to a course which bears South 840:[2'47'. East; thence along said parallel line South 2005:['45'' East, 197.33 feet; thence at right angles South 69°08'15'' West; 298.73 feet to an intersection thereof with said Southwesterly line of Parcel 9; thence along said Southwesterly line North 2005:['45'' West, 229.56 feet to the point of commencement. Excepting therefrom, all off, 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 land for the purpose of mining, drilling, exploring or extracting such oil, gas, minerals and other hydrocarbon substances or other use of or rights in or to any portion of the surface of said land {o a depth of 500 feet below the surface thereof, as reserved in the deed from Volk-Mc Lain CommunEes, ]:nc., to Qualified Investments, Inc., dated June 25, :[967, recorded June 27, 1967, Instrument No. AZ/60836, Alameda County Records. Parcel Two: A perpetual non-exclusive easement and right of way for the construction, 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 of land of the uniform width of 10.00 feet, the center line 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 2:[, 1976, and recorded December 22, 1!.976, in Reel 4652 of Official Records at image 34 thereof (76-216959), 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 2.000 acre parcel of land, said southeasterly tine being also a northwesterly line of "Parcel C, "as said parcel is delineated and so designated on that certain map entitled "Parcel Hap 2622" etc., filed September 25, :[978, .in Book 105 of Haps at pages 52 and 53 thereof, Records of Alameda First American 77t1~ Order Number: 161104AI.:A Page Number: 5 County, California, and running thence South 20© 51"45" East, 9.99 feet; thence North 27° 36' 47" East, :L46.7:L feet; thence North 70© 03' 35" East, 228.7:~ 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 Iine of Amador Plaza Road, South 32° .52' 38" East, ::[00.33 feet from the corner common to "Parcel A" and "Parcel B," as.shown on the aforesaid Parcel Hap 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 (76-216959) 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 Map 2622, as conveyed from Dublin Associates, a California General Partnership to the County of Aiameda, by Grant recorded 3anuary 26, ~.979, Series No. 79-017401, Alameda County Records. APN: 941 -0305-0:L2-02 First American Title (Exhibit B to Loan Agreement) PROMISSORY NOTE $280,000 DUblin, California ,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 PREPAYMENT. 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 writing. 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 wdting 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 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 dghts 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 pre, vent City from exercising any of its other rights or remedies. 3. MISCELLANEOUS 3.1. WAIVER. The dghts 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 dght 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 ext. ensions 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. 614451-2 1-27-03 3.4 GOVERNING LAW. This Note shall be governed by the laws of the State of Califomia 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 ~"'~'Li nd~ Mandolini (,,~/ Ex6cutive Director 614451-2 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 ail 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 delivery 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 i'n 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 wdtten 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 righ~ 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 defaul 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 Architecl Contract unless and until it shall have received an Exercise Notice from Assignee. 5. Notwithstanding any Other provision contained in the Architect's Contra( Architect consents to the foregoing assignment and agrees that, after the occurrence 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 p 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 ha.~ given the Exercise Notice, Assignee will not become liable for any such costs, charge 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 obligation= 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 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 amend~ or modified from time to time, which Architect may own or have the right to use and tc grant others the right to use. Architect further agrees that, upon the written request ol Assignee (whether or not any Event of Default has occurred), it will execute and deliw a certification confirming Assignee's rights with respect to such plans, specifications a 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 th 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 ha., 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 S :t, of ~Y le ~r 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 pdor 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. 11. 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 Architect 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 3 (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 BORROWER: Eden Housing, Inc. 409 Jackson Street Hayward, CA 94544-1567 Attention: Executive Director Fax No. (510) 582-6523 ARCHITECT: Chris Lamen + Associates 869 "A" 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 4 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 IN WITNESS WHEREOF, Assignor, Assignee and Architect have duly executed this Assignment,- as of the date first above written. ASSIGNOR: EDEN HOUSING, INC. ~ Title: Executive Director Approved as to form: City Attorney ASSIGNEE: CITY OF DUBLIN Name../ Title:V ~/~ '~ ~ ARCHITECT: Name:Chris Lamen Title: President 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) (c) 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 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 Promissory 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-I 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 ASSIGNOR: 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 Agreement. 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. Title: Executive Director CITY: CITY OF DUBLIN Title: V ¢ )~ 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 ~olely 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 defauIt 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 arid 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 1-20-03 EXH 8 T RECEIVED JAN 2 A Z003 DUBLIN PLANNING Eden Housing, Inc. 409 Jackson Street Hayward, CA 94544 (510) 582-1460 DUBLIN SENIOR HOUSING Prede~'elopment Budget BU.D~.ET .... To TCAC Submittal LAND & IMPROVEMENTS: Site.A(;quisition o Relc~;afi0n 0 Sit~ Demolition 0 Si~e. Nlai~te~ance (i.e. Security, Clean-Up) 0 Site Value Beyond Cost 0 Total Land & Impro,~ 0 CONSTRUCTION CONSULTANTS: Amh~=ct & Engineering 109.650 Construction Management Services 15,000 Engineering Reports (i.e. Topo, Acoustics, Soils Report) 15,000 Environmental 5,000 Testing & Inspection Total Constr Consull 144,650 CONSTRUCTION: 0 Off-Site Improvements On-S~te Improvements 0 P. odiun~ S~ruc~Jre. · . Unit Construction .'. "' 0 Joint Trench + Extras 0 ContraCtOrs Bond 0 Furniture, Fixtures & Equipment {common area) 0 Construction Contingency 0 Total Constr~ 0 SOFT COSTS: Permits & Fees 50,000 Legal Fees 6,000 Audit Fees 0 Sponsor Administration 37,500 Spq. nsodGP Contribution 0 Sport. so[' He~ Worth Requirement .S..po;nsor Operating Guarantee 0 Market Study 7,500 Cgnsglta~t Fees-Other 0 Servk;es Reserve 0 Leasing and Other Reserves: 0 RentJUp Marketing 0 TCAC Reserves 0 Initial Project Reserves 0 Soft Costs Contingency Total Indirect Cestsl, 15,000 , 116,000 FINANCE & CARRYING COSTS: Liability/cee Insurance 1,000 Taxes 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 O Construction Loan Interest 0 Total[ Fin & Carry Costs! 6,000 TAX CREDITS/SYNDICATION EXPENSES: Tax Credit Expenses: 0 TCAC'Apptication Fee 2,000 TCAC Reservation/Allocation Fee 0 TCAC Deposit 0 TCAC Monitoring Fee 0 TCAC Deposit Re~'und 0 Syndication Consultant 7,500 Syndication Legal Fees 3,000 Syndication-Investor Legal 0 Syndication Other:. Bridge Loan Fees 0 Syndication Other. Bddge Loan/Day Fee Interest 0 Tota! TCACISynd 12,500 TOTAL DEVELOPMENT EXPENSES I 279,150 1/23/03 TCAC @ 48 predev only ~2.16.02 CITY OF DUBLIN BUDGET CHANGE FORM New Appropriations (City Council Approval Required): Budget Transfers: CHANGE FORM # X __ From Unappropriated'Reserves From Budgeted .Contingent Reserve (10800-799.000) (If Other than General Fund, ]Fund No -380) Within Same Department Activity' From New Revenues Between Departments (City Council ApprOval Required) Other Name: ...................................... ]~am~': AffOrdable. Housin~ F~n~- Hous'ing $280,00.00 Programs - Contract Services Account #: Account #: 380-50500-740-000 Name: Name: Account # Account #: Name: Name: Account #: Account #: Name: Name: · Account #: Account #: Name: Name: Account #: Account #: Signature REASON FOR BUDGET CHANGE ENTRY: ~ Entering into a Predevelopment Loan Agreement with Eden Housing, Inc. for the purposes of preparing for construction of Senior Housing at 7606 Amador Valley Blvd. (Site of old library) City Manager: Date: Mayor: -Posted By: H:ICC-FOR30'31FOJ~n~dgct c3a~ge, doa Signature As approved at the City Council Meeting on: Signature Signature Dar e: Date: Date: RESOLUTION NO. - 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 wilt 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, a/nd 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 predevetopment 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 mount upto Two Hundred Eighty Thousand Dollars ($280,000) for the purposes of predevelopment 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 Conlxact 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 ofthis resolution. PASSED, APPROVED, AND ADOPTED this 4th day of February 2003. AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk g:\cdbg~stfrpts\4-01 CC Reso - City-County Agreement Mayor ATTACHMENT